Legal Research
Cases
Frankel v Paterson

Frankel v Paterson

Case [2015] NSWSC 1307 18 September 2015

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Frankel v Paterson [2015] NSWSC 1307
Hearing dates: 18 and 19 August 2015
Date of orders: 18 September 2015
Decision date: 18 September 2015
Before: Young AJA
Decision:
Summons dismissed with costs
Order for specific performance on Cross-Claim

Catchwords: SALE OF LAND – strata unit with common property – purchasers claim Flight v Booth principle applies so that they need not complete – problem with encroachment on to garden, part of common property
REAL PROPERTY – strata title – what are unit holders’ rights over common property
Legislation Cited: Civil Liability Act 2002 (NSW)
Conveyancing Act 1919 (NSW)
Evidence Act 1995 (NSW)
Strata Schemes (Freehold Development) Act 1973 (NSW)
Strata Schemes Management Act 1996 (NSW)
Cases Cited: Beard v Drummoyne MC (1969) 71 SR 250
Brewer v Brown (1884) 28 Ch D 309
Bull v Bull [1955] 1 QB 234
Burns v Grevier [2010] NSWSC 1219
Carre v Owners Corporation – Strata Plan 53020 (2003) 58 NSWLR 302
Charles Hunt Ltd v Palmer [1031] 2 Ch 287
Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264
D C Wagemaker & Sons Pty Ltd v Commonwealth Development Bank of Australia (1970) 91 WN (NSW) 617
Dormer v Solo Investments (No 2) Pty Ltd [1974] 1 NSWLR 428
Ford Excavations Pty Ltd v Do Carmo [1981] 2 NSWLR 253
Flight v Booth (1834) 1 Bing (NC) 370; (1834) 131 ER 1160
Fullers’ Theatres Ltd v Musgrove [1923] HCA 12; (1923) 31 CLR 524
Hamilton v Munro (1951) 51 SR (NSW) 250
Hynes v Vaughan (1985) 50 P & CR 444
Kannane v Demian Develoopments Pty Ltd [2005] NSWSC 1193
Laurence v Lexcourt Holdings Ltd [1978] 2 All ER 810
Lee v Rayson [1917] 1 Ch 613
Lin v Owners Strata Plan 50276 (2004) 11 BPR 21,463
Lion White Lead Ltd v Rogers [1918] HCA 71; (1918) 25 CLR 533
Lohar Corporation Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177
Owners – Strata Plan 50276 v Thoo (2013) 17 BPR 33,789; [2013] NSWCA 270
Owners – Strata Plan 43551 v Walter Construction Group Ltd (2004) 62 NSWLR 169
Platt v Ciriello [1988] 2 QdR 417
R v Hannes (2000) 158 FLR 359
Raphael Shin Enterprises Pty Ltd v Waterpoint
Shepherds Bay Pty Ltd [2014] NSWSC 743
Re O’Hare and O’More’s Contract [1901] 1 Ch 93
Ridis v Strata Plan 10308 (2005) 63 NSWLR 449
Schalit v Joseph Nadler Ltd [1933] 2 KB 79
Taylor v Yorkshire Insurance Co Ltd [1013] 2 IR 21
Trans Realties Pty Ltd v Grbac [1975] 1 NSWLR 170
Turner v Noyes (1904) 20 WN (NSW) 266
Urban House v Purnell Bros (2007) 13 BPR 24
Walker v Boyle [1982] 1 All ER 634
Texts Cited: Bowstead & Reynolds on Agency ( Sweet & Maxwell, 16th ed, 1996)
Jones & Goodhard Specific Performance (1st ed and current ed)
Phipson on Evidence (Sweet & Maxwell, 18th ed, 2013)
Snell’s Equity (Sweet & Maxwell, 31st…

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 Frankel v Paterson

Details

AGLC: Frankel v Paterson [2015] NSWSC 1307
Case: [2015] NSWSC 1307
Decision Date: 18 September 2015

CaseChat Overview and Summary

The matter before the court was Frankel v Paterson. The dispute involved the sale of a strata unit where the purchasers claimed they need not complete the sale because of an encroachment on part of the common property, specifically their garden. The purchasers argued that the Flight v Booth principle should apply, allowing them to avoid completion. This case was heard in the Supreme Court of New South Wales.

The primary legal issues the court had to decide were whether the Flight v Booth principle applied to strata unit sales and, if so, whether the encroachment on the purchasers' garden was sufficient to invoke this principle. The court also needed to determine the extent of the unit holders' rights over the common property in a strata title context.

The court held that the Flight v Booth principle could apply to strata unit sales, particularly where there is a material defect affecting common property. However, the court found that the encroachment on the purchasers' garden, while problematic, did not constitute a material defect that would release the purchasers from their obligation to complete the sale. The court clarified the unit holders' rights over common property, emphasising that these rights are not absolute and can be subject to the rights of other unit holders and the body corporate. Ultimately, the court ruled in favour of the vendor, requiring the purchasers to complete the sale.

The final orders of the court mandated that the purchasers complete the purchase of the strata unit as per the original contract terms. The court did not grant the purchasers relief from completing the sale due to the encroachment on their garden. The decision underscored the importance of distinguishing between minor issues and material defects in property sales, particularly in strata titles where common property rights are involved.

Orders