Hawes v Cuzeno Pty Ltd - [1999] NSWSC 1167

Reported Decision: [1999] 10 BPR 18,011
[2000] ANZ ConvR 494
[2000] NSW ConvR 55-930

New South Wales

Supreme Court

CITATION: HAWES & ORS v. CUZENO PTY LTD & ANOR [1999] NSWSC 1167 revised - 26/06/2000

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 4450/98

HEARING DATE(S): 29 & 30/11 & 1/12/99

JUDGMENT DATE:
14 December 1999

PARTIES :

Vicki Lynne Hawes & Ors v. Cuzeno Pty Ltd & Anor

JUDGMENT OF: Bryson J at 1

COUNSEL : C. Harris for Plaintiffs
D. Warren for Defendants

SOLICITORS: Messrs Willis & Bowring for Plaintiffs
Vosnakis & Associates for Defendants

CATCHWORDS: VENDOR and PURCHASER - sale of home units "Off the plan" - condition for rescission if Strata Plan not registered within 24 months was held to be conditional on vendors complying with Printed Condition A6.1 ("the vendor must do everything to have the plan registered within the plan registration time") - found on the facts that there were breaches of A6.1, the vendors' Notice of Rescission was not effective, and purchasers were entitled to Specific Performance.

CASES CITED: Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Plumor Pty Ltd v Handley (1996) 41 NSWLR 30
Woodcock v. Parlby Investments Pty Ltd (1989) NSW Conv.R 55-454
Gardiner v. Orchard (1910) 10 CLR 772
Pierce Bell Sales Pty Ltd v. Frazer & Anor (1974) 130 CLR 575

DECISION: See para. 47

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

TUESDAY 14 DECEMBER 1999

4450/98 VICKI LYNNE HAWES & ORS v CUZENO PTY LTD & ANOR
JUDGMENT

1 HIS HONOUR: The plaintiffs are the purchasers, in four separate but very similar contracts, of four home units in a development of 52 residential home units with garages in Willock Avenue, Miranda, New South Wales. The purchasers agreed to buy the home units from the vendors “off the plan”, before construction of the building began and, of course, before the strata plan had been registered or certificates of title for strata lots had been issued. 2 Mr Li, the fourth plaintiff, agreed to buy Unit 19 for $200,000 on 29 May 1996. Mr and Mrs Turnell the third plaintiffs agreed to buy Unit 44 for $207,500 on 30 May 1996. Osboom Pty Ltd the second plaintiff as trustee for the Cleary Family Trust agreed to buy Unit 34 for $200,000 on 4 June 1996. Mrs Hawes the first plaintiff agreed to buy Unit 33 for $200,000 on 11 June 1996. 3 Exhibit B is Mr Li’s contract and its provisions which bear directly on the issues are the same in each plaintiff’s contract. The provision establishing the completion date is Special Condition 28 which is in these terms:

“28. That completion of this Agreement shall take place within six (6) weeks from the date hereof or within four (4) weeks from the date of notification to the Purchaser of registration of the Strata Plan (whichever be the later) (hereinafter called the ‘Due Date’ and further if completion has not…

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: [1999] NSWSC 1167
Decision Date: 14 December 1999

CaseChat Overview and Summary

The case of Hawes v Cuzeno Pty Ltd dealt with a dispute between a purchaser and a vendor in a property sale where the units were sold off the plan. The purchaser, Hawes, sought specific performance of the contract after the vendors, Cuzeno Pty Ltd, attempted to rescind the contract due to the delay in registering the strata plan. The case was heard in the Supreme Court of Queensland. The central legal issue revolved around the enforceability of a rescission clause in the contract, which was contingent upon the registration of the strata plan within a specified timeframe. The court had to determine whether the vendor's failure to comply with certain obligations under the contract meant that the rescission clause was not validly exercised.

The court examined whether the vendors had fulfilled their obligations as outlined in Printed Condition A6.1 of the contract, which required them to make all efforts to register the plan within the stipulated period. The court found that there were breaches of this condition, leading to the conclusion that the vendors could not validly exercise the rescission clause. Consequently, the Notice of Rescission issued by the vendors was deemed ineffective. The court held that the purchaser was entitled to specific performance, compelling the vendors to complete the sale as per the original agreement.

The reasoning of the court was based on the premise that for the rescission clause to be effective, the vendors had to adhere to their contractual obligations. Since there were clear breaches of these obligations, the court ruled that the rescission was not validly exercised. This decision underscored the importance of compliance with contractual conditions, particularly when such conditions are integral to the enforcement of a rescission clause. The purchasers were thus entitled to the specific performance of the contract, ensuring they received the property as originally agreed upon. The court's decision ultimately favoured the purchaser, Hawes, affirming the enforceability of the contract and the purchaser's right to the property.

Orders