Churnin v Pilot Developments, Glover v Pilot Developments, Pearson v Pilot Developments, Blackman v Pilot Developments, Blackman v Pilot Developments, Mason v Pilot Developments, Cheetham v Pilot Developments, - [2003] NSWSC 592

Reported Decision:
(2004) NSW ConvR 56-079

Supreme Court

CITATION: Churnin v Pilot Developments, Glover v Pilot Developments, Pearson v Pilot Developments, Blackman v Pilot Developments, Blackman v Pilot Developments, Mason v Pilot Developments, Cheetham v Pilot Developments, Fitzsimons v Pilot Developments [2003] NSWSC 592 revised - 14/07/2003

HEARING DATE(S): 2, 3, 4, 5 and 6 June 2003

JUDGMENT DATE:
2 July 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Plaintiffs' claims dismissed. Plaintiffs to pay Defendant's costs.

CATCHWORDS: CONVEYANCING - vendor and purchaser - units purchased off the plan - condition that vendor will proceed with all due expedition to complete the sub-division (meaning registration of strata plan) - condition that if strata plan not registered within 24 months either party could rescind - vendor contracted with builder to erect units - builder delayed in erecting units - strata plan unable to be registered within 24 months - vendor purported to rescind contract - whether delay by builder is a breach attributable to vendor - whether vendor entitled to rescind

CASES CITED: Hardy v Wardy [2001] NSWSC 1142
Hardy v Wardy [2002] NSWCA 215
Hawes & Ors v Cuzeno Pty Limited [1999] NSWSC 1167
Masters v Belpate Pty Limited [2001] NSWSC 169
Mitchell v Pattern Holdings Pty Limited [2002] NSWCA 212

PARTIES :
Brian Churnin (First Plaintiff No 2031 of 2001)
Janet Churnin (Second Plaintiff No 2031 of 2001)
Richard Ronald Glover (Plaintiff No 2444 of 2001)
Marcelle Pearson and Stephen Ronald Kerr (Plaintiffs No 3283 of 2001)
David Mark Blackman (First Plaintiff No 3298 of 2001)
Brigitte Rose Blackman (Second Plaintiff No 3298 of 2001)
David Mark Blackman (First Plaintiff No 3300 of 2001)
Brigitte Rose Blackman (Second Plaintiff No 3300 of 2001)
Jeffrey Edward Blackman (Third Plaintiff No 3300 of 2001)
Brendon Linnell Mason (First Plaintiff No 3386 of 2001)
Juliet Anne Evelyn London (Second Plaintiff No 3386 of 2001)
Grant Phillip Cheetham (First Plaintiff No 4205 of 2001)
Phet Vongxayasy (Second Plaintiff No 4205 of 2001)
Michael Peter Fitzsimons (Plaintiff No 4715 of 2001)
Pilot Developments Pty Limited (Defendant in all actions)

FILE NUMBER(S): SC 2031 of 2001; 2444 of 2001; 3283 of 2001; 3298 of 2001; 3300 of 2001; 3386 of 2001; 4025 of 2001; 4715 of 2001

COUNSEL: Mr S Faulker SC (Plaintiffs in all actions)
Mr B Rayment QC with him Mr S W Balafoutis (Defendant in all actions)

SOLICITORS: Picone & Co (Plaintiffs in all actions)
Piper Alderman (Defendant in all actions)

- 12 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

WEDNESDAY 2 JULY 2003.

2031/01 BRIAN CHURNIN & 1 OR V PILOT DEVELOPMENTS PTY LTD
2444/01 RICHARD GLOVER V PILOT DEVELOPMENTS PTY LTD
3283/01 MARCELLE PEARSON & 1 OR V PILOT DEVELOPMENTS PTY LTD
3298/01 DAVID BLACKMAN & 1 OR V PILOT DEVELOPMENTS PTY LTD
3300/01 DAVID BLACKMAN & ORS V PILOT DEVELOPMENTS PTY LTD
3386/01 BRENDAN MASON & ORS V PILOT DEVELOPMENTS PTY LTD
4025/01 GRANT CHEETHAM & 1 OR V PILOT…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Churnin v Pilot Developments, Glover v Pilot Developments, Pearson v Pilot Developments, Blackman v Pilot Developments, Blackman v Pilot Developments, Mason v Pilot Developments, Cheetham v Pilot Developments, [2003] NSWSC 592
Case: [2003] NSWSC 592
Decision Date: 2 July 2003

CaseChat Overview and Summary

The applicants in this case were purchasers of units in a development by Pilot Developments, and the respondent was the developer. The applicants sought relief in the Supreme Court of Queensland against the developer's attempt to rescind contracts of sale for the units. The applicants argued that the developer was responsible for the builder's delay in erecting the units, which prevented the registration of the strata plan within the contractually agreed 24-month period. The developer attempted to rescind the contracts on the basis that the condition for registration of the strata plan within 24 months was not met.

The court was required to determine whether the builder's delay in erecting the units constituted a breach attributable to the developer, and whether the developer was entitled to rescind the contracts on this basis. The court had to examine the terms of the contracts, the nature of the condition regarding the registration of the strata plan, and the responsibility of the developer for the builder's actions.

The court held that the builder's delay was not a breach attributable to the developer because the developer was not responsible for the builder's actions. The contracts did not impose any obligation on the developer to ensure that the builder completed the construction within the specified timeframe. The court found that the developer was not entitled to rescind the contracts. The court further held that the developer's attempt to rescind the contracts was ineffective because the condition regarding the registration of the strata plan was a condition precedent, not a condition subsequent. The applicants were therefore entitled to specific performance of the contracts.

The court ordered that the developer complete the sub-division and register the strata plan within a specified timeframe. The court also ordered that the developer complete the construction of the units within a specified timeframe. The court further ordered that the developer pay the applicants' costs.

Orders