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Higgins v Statewide Developments Pty Ltd

Higgins v Statewide Developments Pty Ltd

Case [2010] NSWSC 183 16 March 2010

Breach of Contract

Unconscionable Conduct

Rescission

Statute of Frauds

Remedies for Breach of Contract

Restitution

Contract Law

Property Law

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CITATION: Higgins v Statewide Developments Pty Ltd [2010] NSWSC 183

HEARING DATE(S): 03/03/10, 04/03/10, 05/03/10

JUDGMENT DATE :
16 March 2010

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Order that deposit be paid to plaintiff. All other claims in the statement of claim and all claims in the cross-claim dismissed, except claims for costs. The question of costs is reserved.

CATCHWORDS: CONVEYANCING - "off-the-plan" purchase of home unit - where vendor represented that completed unit would have 180 degree water view - view obstructed by wall of premises as constructed - whether purchaser entitled to rescind under special condition concerning substantial departure from draft strata plan - whether purchaser entitled to rescind under rule in Flight v Booth - whether parties entered into oral agreement to rescind contract - CONTRACT - damages - liability of defaulting purchaser - property not re-sold by vendor - vendor particularises damage mainly by reference to reduction in value of property and interest payable by vendor on continued acquisition and construction finance - first head of damage not proved - second head of damage not claimable - no damage proved - CONVEYANCING - deposit forfeited to vendor - claim by purchaser for repayment of deposit - where vendor misrepresented availability of 180 degree water view - where vendor proves no damage - CONTRACT - Statute of Frauds - oral contract for rescission of contract for sale of land - whether writing required

LEGISLATION CITED: Conveyancing Act 1919, ss 7, 54A, 55(2A)
Statute of Frauds 1677 (29 Car 2 c 3), ss 4, 17
Strata Titles (Freehold Development) Act 1973

CATEGORY: Principal judgment

CASES CITED: Akot Pty Ltd v Rathmines Investments Pty Ltd [1984] 1 Qd R 302
Bridges v MacPhail (1977) 3 BPR 9317
British & Benningtons Ltd v North Western Cachar Tea Co [1923] AC 48
Carpenter v McGrath (1996) 40 NSWLR 39
Dykes v Blake (1836) 7 LJCP 282
Eight SRJ Pty Ltd v Merity (1997) 7 BPR 15,189
Fletcher v Manton [1940] HCA 32: (1940) 64 CLR 37
Flight v Booth (1834) 1 Bing NC 370; 131 ER 1160
Franklins Ltd v Metcash Trading Ltd [2009] NSWCA 407
Goss v Lord Nugent (1833) 5 B & Ad 58; 110 ER 713
GPT RE Ltd v Lend Lease Real Estate Investments Ltd [2005] NSWSC 964; (2005) 12 BPR 23,217
Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145
Havyn Pty Ltd v Webster [2005] NSWCA 182; (2005) 12 BPR 22,837
Jampco Pty Ltd v Cameron (No 2) (1985) 3 NSWLR 391
Kannane v Demian Developments Pty Ltd [2005] NSWSC 1193; (2005) 12 BPR 23,305
Laird v Pim (1841) 7 M & W 474; 171 ER 852
Mallick v Parish (1916) 16 SR (NSW) 305
Nassif v Caminer [2009] NSWCA 45; (2009) 14 BPR 26,873
Nelson v Bellamy [2000] NSWSC 182; (2000) 10 BPR 19,011
Paino v Paino [2008] NSWCA 276; (2008) 40 Fam LR 96
Palasty v Parlby [2007]…

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 Higgins v Statewide Developments Pty Ltd

Details

AGLC: Higgins v Statewide Developments Pty Ltd [2010] NSWSC 183
Case: [2010] NSWSC 183
Decision Date: 16 March 2010

CaseChat Overview and Summary

The case of Higgins v Statewide Developments Pty Ltd involved a dispute between a purchaser, Higgins, and a vendor, Statewide Developments, concerning an off-the-plan purchase of a home unit. The central issue was whether Higgins was entitled to rescind the contract due to a significant departure from the draft strata plan, specifically the obstruction of a promised 180-degree water view by the constructed wall. Additionally, the case examined whether there was an oral agreement to rescind the contract and if the parties had entered into such an agreement.

The court was tasked with determining the validity of Higgins' claim for rescission under a special condition in the contract and under the rule in Flight v Booth, as well as assessing the validity of an alleged oral agreement to rescind. The court also needed to evaluate the vendor's damages claim, focusing on the reduction in property value and the interest payable on continued acquisition and construction finance. Moreover, the court had to consider the purchaser's claim for the repayment of the forfeited deposit and the applicability of the Statute of Frauds to any alleged oral rescission agreement.

The court found that the purchaser was not entitled to rescind the contract due to the obstruction of the water view as it did not amount to a substantial departure from the draft strata plan. The court also held that there was no evidence of an oral agreement to rescind the contract. Regarding damages, the vendor's claim was rejected as the court found no evidence of a reduction in property value or allowable interest claims. The court ordered the vendor to repay the forfeited deposit to the purchaser as there was no evidence of damage to support the vendor's retention of the deposit. Lastly, the court determined that an oral agreement for the rescission of the contract for the sale of land was not enforceable due to the Statute of Frauds.

Orders