Immer No 145 Pty Limited v The Uniting Church in Australia Property Trust (NSW)

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Immer No 145 Pty Limited, sought to appeal a decision of the Court of Appeal concerning a contract for the purchase of "air rights" in Sydney. The dispute arose from the operation of the doctrine of election in the context of this contract.

The legal issues before the High Court involved the interpretation of the doctrine of election, specifically concerning the concept of "adversity" as previously referred to by Mason CJ in *Sargent* and *Turner*. The applicant argued that conduct indicating a contract remains on foot does not automatically constitute adversity to the other party. They contended that adversity depends on the nature of the vendor's contractual obligations and is not a minor consideration. Furthermore, the applicant raised the issue of whether adversity exists when a right to rescind continues in substance due to the vendor's ongoing fundamental obligation to bring the subject matter of the sale into existence.

The applicant's submissions focused on the meaning of adversity. They argued that the respondent's conduct was not adverse because the respondent's outstanding contractual obligation at the time of the alleged notice of election was merely to continue restoration work on its premises, which was being undertaken for collateral reasons. The air rights were presented as a secondary benefit of this work. The applicant also contended that if the right to rescind substantially continued for the purchaser, there was no adversity, particularly where the vendor had a radical obligation to create the subject matter of the sale. The applicant indicated that if leave were granted, they would also seek to argue that there was no insistence on performance by their client and that both parties were under a misapprehension of material fact relevant to the notice of election.