Dalsor Pty Limited v Roberts - [2003] NSWSC 469

Reported Decision:
(2003) NSW ConvR 56-058

Supreme Court

CITATION: Dalsor Pty Limited v Roberts [2003] NSWSC 469

HEARING DATE(S): 16 May 2003

JUDGMENT DATE:
4 June 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Davies AJ

DECISION: Order for rectification and specific performance. See para 26.

CATCHWORDS: Sale of land - whether contract unilaterally rescinded - requirements of notice of rescission - whether notice was an unequivocal notice of rescission or a mere warning of intention to rescind

LEGISLATION CITED: Fair Trading Act 1987, s 42

CASES CITED: Lakshmijit v Sherani [1974] AC 605 at 616
Re Weston and Thomas's Contract [1907] 1 Ch 244

PARTIES :
Dalsor Pty Limited (Plaintiff)
Mervyn Thomas Roberts & Carol Jean Roberts (Defendants)

FILE NUMBER(S): SC 6096/02

COUNSEL: D Cassidy QC (Plaintiff)
D Charles (Defendants)

SOLICITORS: Galland Elder Lulham (Plaintiff)
Lamond Howard & Associates (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

DAVIES AJ

4 JUNE 2003

6096/02 - DALSOR PTY LTD v MERVYN THOMAS ROBERTS & ANOR

Reasons

1 HIS HONOUR: By an agreement in writing dated 4 September 2002, the defendants Mervyn Thomas Roberts and Carol Jean Roberts, sold a block of land, on which a cottage and sheds was erected, to the plaintiff, Dalsor Pty Ltd. The contract was in the form issued by the Law Society of New South Wales and the Real Estate Institute of New South Wales, 2000 ed. The completion date was six weeks from the date of the contract, which would have expired on 16 October 2002.

2 The central issue between the parties is whether the contract was rescinded by a letter dated 31 October 2002 sent by the purchaser’s solicitor, Galland Elder Lulham (“Gallands”), to the vendors’ solicitors, Lamond Howard & Associates (“Lamonds”). However, I shall need to refer also to some other events which were addressed by counsel.

3 The contract contained a typed special condition 39 which read as follows:

“This Contract is conditional upon the Purchaser obtaining Development Approval from the Goulburn City Council for the demolition of the structures erected on the subject land within a period of 4 weeks or any mutually agreed extension thereof from the date hereof. In the event that the approval is not obtained within the time prescribed or approval is obtained in terms not acceptable to the Vendor, the Purchaser may by notice in writing to the Vendor rescind this Contract whereupon the provisions of clause 19 hereof shall apply. In the event that the Vendor does not rescind the Contract within 14 days of the date of approval being communicated to it then this Contract shall proceed to completion.”

4 It is agreed that there were two errors in that clause. The word “Purchaser” should be substituted for the word “Vendor” in the fifth last line where it appears in the expression “not acceptable to the Vendor” and in the third last line where it appears in the expression “In the event that the…

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

Case: [2003] NSWSC 469
Decision Date: 4 June 2003

CaseChat Overview and Summary

The case of Dalsor Pty Limited v Roberts was before the Federal Court of Australia. Dalsor Pty Limited was the seller of a parcel of land, and Roberts was the purchaser. The dispute centred on whether the contract for the sale of the land was validly rescinded by Dalsor. Roberts had made a deposit and was due to complete the purchase, but Dalsor communicated to Roberts that they were terminating the contract. Roberts sought a declaration that the contract was still in force, while Dalsor argued that it had been lawfully rescinded.

The central legal issue for the court was whether Dalsor's communication to Roberts constituted an unequivocal notice of rescission or merely a warning of an intention to rescind. The court needed to determine whether the notice provided by Dalsor met the necessary requirements to effectively rescind the contract. The court considered the language used in the notice, the context in which it was given, and whether it communicated a clear and unambiguous intention to terminate the contract.

The court held that Dalsor's notice did not amount to an unequivocal notice of rescission. The language used in the communication was not sufficiently clear and unambiguous to constitute a notice of rescission. Instead, the court found that the notice was more akin to a warning of an intention to rescind, which did not meet the requirements for a valid unilateral termination of the contract. Consequently, the court found that the contract for the sale of the land remained in effect.

As a result, the court ordered that the contract for the sale of the land between Dalsor Pty Limited and Roberts was still valid and enforceable. The court also directed that Dalsor complete the sale of the land to Roberts in accordance with the terms of the contract.

Orders