Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Kane & Co (NSW) Pty Ltd v Idolbox Pty Ltd [2024] NSWCA 278 Hearing dates: 25 October 2024 Date of orders: 27 November 2024 Decision date: 27 November 2024 Before: Kirk JA at [1];
McHugh JA at [2]; and
Basten AJA at [98]Decision: (1) Appeal allowed.
(2) Judgment of the Court below be set aside.
(3) Declare that the contract for sale of the property at 88-120 Clovelly Road, Randwick NSW 2031 dated 24 November 2022 between the first respondent as vendor and the appellant as purchaser was lawfully rescinded by the appellant’s notice of recission dated 20 February 2023.
(4) Order that the second respondent forthwith pay to the appellant the amount of $437,500.00 it held as stakeholder under the contract, together with any interest on that money.
(5) The respondents pay the appellant’s costs of the appeal.
(6) There be no order as to the costs of the proceedings at first instance.
Catchwords: CONTRACTS – Interpretation – no question of principle – where right of rescission engaged if Environmental Report “indicates that the property does not fall within the NSW Environment Protection Authority guidelines in relation to the contamination levels in, on or under the property and which permits the property to be used as a Service Station” – whether necessary to engage right of rescission that there be indication in Environmental Report that land could not be used as a service station
Legislation Cited: Contaminated Land Management Act1997 (NSW), ss 3, 4, 5, 10, 11, 12, 13, 14, 16, 17, 28, 60, 105
Consultants reporting on contaminated land: Contaminated Land Guidelines 2020
National Environment Protection (Assessment of Site Contamination) Measure 1999
Cases Cited: Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57
Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24
Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited and Another (2015) 256 CLR 104; [2015] HCA 37
Category: Principal judgment Parties: Kane & Co (NSW) Pty Limited (Appellant)
Idolbox Pty Limited (First Respondent)
PPSA DEVELOPMENTS PTY LTD as trustee for the PPSA Developments Unit Trust (Second Respondent)Representation: Counsel:
Solicitors:
JT Gleeson SC with M Sheldon and LG Moretti (Appellant)
JE O’Sullivan with N Simone (First and Second Respondents)
Sparke Helmore Lawyers (Appellant)
Murphy Lyons Lawyers (First and Second Respondents)
File Number(s): 2024/179863 Publication restriction: Nil. Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity
- Citation:
- Date of Decision:
- 18 April 2024
- Before:
- Parker J
- File Number(s):
- 2023/123229
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 24 November 2022, the appellant entered into a contract with the first respondent for the purchase of land in Randwick which was used as a service station and automotive workshop. The second respondent acted as agent…
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- Case
- [2024] NSWCA 278
- Decision Date
CaseChat Overview and Summary
The Court of Appeal considered the proper construction of the rescission clause. It reasoned that the clause contained two conditions, linked by the conjunction "and". The first condition was that the Environmental Report must indicate that the property does not fall within the relevant EPA guidelines concerning contamination levels. The second condition was that the report must also indicate that the property is permitted to be used as a service station. The Court found that the wording of the clause required both conditions to be met for the right of rescission to be engaged. However, it further interpreted the phrase "which permits the property to be used as a Service Station" as a description of the *outcome* of falling within the EPA guidelines, rather than an independent condition. Therefore, the Court concluded that the clause was satisfied if the report indicated that the property did not meet the EPA guidelines for contamination levels, as this implicitly meant it would not be permitted for use as a service station.
The Court of Appeal allowed the appeal, setting aside the judgment of the court below. It declared that the contract for the sale of the property at 88-120 Clovelly Road, Randwick, was lawfully rescinded by the appellant. The Court ordered the second respondent to pay the appellant the sum of $437,500.00 held as stakeholder, along with any interest. The respondents were ordered to pay the appellant's costs of the appeal, with no order as to the costs of the proceedings at first instance.
Orders
Orders of the court
(1) Appeal allowed.
(2) Judgment of the Court below be set aside.
(3) Declare that the contract for sale of the property at 88-120 Clovelly Road, Randwick NSW 2031 dated 24 November 2022 between the first respondent as vendor and the appellant as purchaser was lawfully rescinded by the appellant’s notice of recission dated 20 February 2023.
(4) Order that the second respondent forthwith pay to the appellant the amount of $437,500.00 it held as stakeholder under the contract, together with any interest on that money.
(5) The respondents pay the appellant’s costs of the appeal.
(6) There be no order as to the costs of the proceedings at first instance.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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