DGF Property Holdings Pty Limited v Di Federico; DGF Property Holdings Pty Limited v Butros (No 2)

The matter involved DGF Property Holdings Pty Limited as the vendor against Di Federico and Butros, the purchasers, before the Supreme Court of New South Wales. The dispute revolved around the enforcement of consequential orders that would allow the vendor to rescind off-the-plan contracts, pursuant to section 66ZL of the Conveyancing Act 1999 (NSW). The court was asked to determine the conditions under which such rescission would be permissible, including the requirement for the vendor to provide an undertaking, which included offering a new contract at an adjusted purchase price. The case was further complicated by the differing representation of the parties and the issue of costs, especially given that the proceedings were heard together but involved separate representation for one party and joint representation for the others.

The court had to address several legal issues, primarily concerning the interpretation and application of section 66ZL of the Conveyancing Act. This section allows for the rescission of contracts if certain conditions are met, and the court had to determine the precise nature of the undertaking required, particularly in terms of the offer of a new contract at an adjusted price. Another significant issue was the allocation of costs between the parties, given that the proceedings were heard together but resulted in different outcomes for each party. The court also needed to decide whether the party who was successful in one of the proceedings should pay a fixed proportion of the costs across both proceedings, and if so, what that proportion should be.

In its decision, the court held that the vendor could rescind the contracts under section 66ZL, subject to providing an undertaking that included offering a new contract at an adjusted purchase price. This decision was based on the specific circumstances of the case, including the terms of the original contracts and the nature of the vendor's obligations. Regarding costs, the court ruled that the party who was successful in one of the proceedings should pay a fixed proportion of the costs across both proceedings, taking into account the differing representation and the complexity of the issues involved. The court also noted that where parties have similar or identical issues and are not in conflict, separate representation should not automatically result in a different cost allocation.

The final orders of the court included permission for the vendor to rescind the contracts under the specified conditions, and an order that the successful party in one of the proceedings pay a fixed proportion of the costs across both proceedings. This decision provides clarity on the application of section 66ZL of the Conveyancing Act and the principles governing the allocation of costs in complex litigation involving multiple parties with differing representations.