Cong Xu v Austino Property Development Pty Ltd

In the matter of Cong Xu versus Austino Property Development Pty Ltd, the dispute arose from the purchaser's claim to rescind a contract for the sale of land due to non-compliance with a condition by the vendor. The case was adjudicated by the Supreme Court of New South Wales. The primary contention was whether the purchaser's actions, including entering into negotiations for early occupation of the property, constituted conduct inconsistent with their right to rescind, thereby forfeiting that right.

The court had to determine if the purchaser's engagement in discussions regarding early occupation and related actions could be seen as an election that was inconsistent with the right to rescind. The legal issue revolved around whether such conduct, if any, constituted a relinquishment of the right to rescind, aligning with the principle that a party cannot retain inconsistent contractual rights. The court examined the actions of the purchaser to discern if they had effectively elected to waive their right to rescind in favour of maintaining the contract's terms.

In resolving these issues, the court concluded that the purchaser's actions, including entering into negotiations for an early occupation of the property, did not unequivocally demonstrate an election to affirm the contract. The court found that these actions were not so inconsistent with the right to rescind as to amount to a relinquishment of that right. Therefore, the purchaser retained the option to rescind the contract for the sale of land due to the vendor's non-compliance with a condition. The court's decision allowed the purchaser to proceed with the rescission of the contract, subject to the terms and conditions specified in the judgment.