Executive Builders & Developers Pty Ltd v Roddam - [2003] NSWSC 1071

CITATION: Executive Builders & Developers Pty Ltd v Roddam [2003] NSWSC 1071

HEARING DATE(S): 05/11/03

JUDGMENT DATE:
21 November 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Interlocutory order granted.

CATCHWORDS: CONTRACT [135]- Rescission- Sale of land and deed of compromise- Special conditions- Purchase money fully paid- Effect of purported rescission if valid- Whether obligation on person rescinding to refund purchase money. CONVEYANCING [2]- Sale of land subject to registration of plan- Plan not registered- Plaintiff purported to rescind the contracts- Obligation on parties to do whatever reasonably necessary- Onus discussed- Held arguable case that rescission ineffective. EQUITY [338]- Interlocutory order- Balance of convenience- Construction of contracts permissible during an interlocutory application but not usually where construction may be affected by the factual matrix of the case- How far convenience of third parties material.

CASES CITED: Fileman v Liddle (1974) 2 BPR 9192
Hawes v Cuzeno Pty Ltd (1999) 10 BPR 18,011
Masterton Homes Pty Ltd v Executive Builders & Developers Pty Ltd [2003] NSWSC 908
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France [1919] AC 1
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729
Walker v Chanrich Properties Pty Ltd [2003] NSWSC 1064
Westminster Estates Pty Ltd v Calleja (1970) 91 WN (NSW) 222

PARTIES :
Executive Builders & Developers Pty Limited (P)
Peter James Roddam (D1)
Glenda Joyce Roddam (D2)

FILE NUMBER(S): SC 4192/03

COUNSEL: A D Justice (P)
M K Meek (D)

SOLICITORS: Clark McNamara Lawyers (P)
Russell McLelland Brown (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 21 November 2003

4192/03 - EXECUTIVE BUILDERS & DEVELOPERS PTY LTD v RODDAM

JUDGMENT

1 HIS HONOUR: The applicants/defendants move for an interlocutory order that the respondent be restrained from dealing in any way with proposed Lots 7, 8, 31, 34, 35 and 37 in a certain plan until further order.

2 The case has a number of unusual features.

3 It is common ground that on 18 June 2002, a deed called Deed of Compromise was entered into between the plaintiff and the first and second defendants, Peter and Glenda Roddam. The recitals were:

"A. Lena Pace, Victor Pace, Catherine Pace, J & L Pace have entered into
the Loan Agreement.

B. Executive is the registered proprietor of the Property.

satisfied on the terms set out in this Deed."

4 The Loan Agreement was defined as being the agreement between the Roddams and Paces which was set out in Schedule 1 to the Deed. It would appear that the Paces owed the Roddams $650,000 under that agreement. The loan was secured, inter alia, by a second mortgage over Lot 6 Meroo Road, Meroo Meadow…

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.

Continue reading Executive Builders & Developers Pty Ltd v Roddam

Details

AGLC: Executive Builders and Developers Pty Ltd v Roddam [2003] NSWSC 1071
Case: [2003] NSWSC 1071
Decision Date: 21 November 2003

CaseChat Overview and Summary

Executive Builders & Developers Pty Ltd brought an action against Roddam regarding the sale of land and a deed of compromise. The dispute centred on whether a rescission of the contracts was effective, specifically if the party rescinding was required to refund the purchase money. The matter was heard in the Supreme Court of Queensland. The primary legal issues involved the interpretation of the special conditions in the contracts, the obligations of the parties to register the plan of subdivision, and the effect of the rescission if valid.

The court examined whether the obligation to register the plan of subdivision was a condition precedent or merely a condition subsequent. It was determined that the obligation was to do whatever was reasonably necessary to register the plan, indicating it was a condition subsequent. The court also considered the balance of convenience in relation to an interlocutory order, noting that while construction of contracts was permissible during such applications, it was generally not appropriate where the construction might be influenced by the factual context of the case. The court held that there was an arguable case that the rescission was ineffective and that the obligation to refund the purchase money would depend on the outcome of the case.

The court found that the onus of proof lay with the party seeking to assert the rescission was ineffective. Given the arguments presented, the court concluded that there was a sufficient basis to proceed with the case, leaving the ultimate determination of the rescission's validity to be resolved at trial. Consequently, the court declined to make a final determination on the refund of the purchase money at the interlocutory stage. The final orders included allowing the plaintiff's application for an interlocutory injunction to prevent the defendant from proceeding with the rescission, pending further evidence and argument at the full hearing.

Orders