Mandalidis v Artline - [1999] NSWSC 909

Reported Decision: 47 NSWLR 568
(1999) NSW ConvR 55-919

New South Wales

Supreme Court

CITATION: Mandalidis v Artline [1999] NSWSC 909

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 2134/97

HEARING DATE(S): 24 and 25 November 1998

JUDGMENT DATE:
9 September 1999

PARTIES :

Jason Mandalidis and Marino Rodriguez (P)
Artline Contractors Pty Ltd (D1)
Maraza Holdings Pty Ltd T/as L J Hooker (Mascot) Pty Ltd (D2)

JUDGMENT OF: Austin J

COUNSEL : S Epstein (P)
S Reuben with M Dulhunty (D)

SOLICITORS: Baron & Associates (P)
David Landa Stewart & Co (D)

CATCHWORDS: Conveyancing - statutory warranties in contract for sale of land - s 149 certificate fails to disclose council's policy on aircraft noise - warranty that s 149 certificate specifies true status of land regarding council policy to restrict development because of 'other risk' - scope and construction of warranty - entitlement to rescind - whether council's policy on aircraft noise a matter 'affecting' the land - meaning of requirement that purchaser would not have entered into contract if aware of existence of council's policy; statutory interpretation - purposive interpretation of remedial and reformatory legislation - relevance of ejusdum generis and noscitur a sociis rules.

ACTS CITED: Conveyancing Act 1919 (NSW), ss 52A, 55(2A)
Conveyancing (Sale of Land) Regulation 1995, Regulation 7, 19, 20 and Schedule 3
Environmental Planning and Assessment Act 1979 (NSW), s 149
Environmental Planning and Assessment Regulation 1994, Schedule 4
Interpretation Act 1987 (NSW), s 33

CASES CITED: Brewarrana Pty Ltd v Commr. of Highways (No 2) (1973) 6 SASR 541
Jones v Assef [1975] 2 NSWLR 13
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Little v Piccin (1983) 52 LGRA 258
Lucas & Tait (Investments) Pty Ltd v Victoria Securities Ltd [1973] 2 NSWLR 268
Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368
SA Mearns v Parris Holdings Pty Ltd (1994) 6 BPR 13,677
Timanu Pty Ltd v Clurstock Pty Ltd (1988) 15 NSWLR 338
Wight v Foran (1987) 11 NSWLR 470

DECISION: Summons dismissed; judgment for first defendant/cross-claimant on cross-claim

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

THURSDAY 9 SEPTEMBER 1999

2134/97 - JASON MANDALIDIS AND MARINO RODRIGUEZ v ARTLINE CONTRACTORS PTY LTD AND MARAZA HOLDINGS PTY LTD T/AS L J HOOKER (MASCOT) PTY LTD

JUDGMENT

1 HIS HONOUR: This is a dispute between a vendor and purchaser of a warehouse and office building near Kingsford Smith Airport in Sydney. It arises because the s 149 certificate attached to the contract of sale did not disclose that at the date of the contract there was a Council policy on aircraft noise. The purchaser says that the policy affected the land, that the purchaser was unaware, but if it had been aware it would not have entered into the contract, and consequently that it was entitled to rescind the contract. The vendors disagree.

The contract

2 On 14 November 1996 the plaintiffs as vendors entered into a contract with the first defendant as purchaser for…

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 Mandalidis v Artline

Details

AGLC: Mandalidis v Artline [1999] NSWSC 909
Case: [1999] NSWSC 909
Decision Date: 9 September 1999

CaseChat Overview and Summary

Mandalidis v Artline was a case heard by the Supreme Court of Queensland. The plaintiff, Mandalidis, sought to rescind a contract for the sale of land on the basis that the defendant, Artline, had breached a statutory warranty contained in the contract. The warranty required that the contract specify the true status of the land in relation to council policy to restrict development because of "other risk." The dispute centred on whether the failure to disclose the council's policy on aircraft noise constituted a breach of this warranty.

The primary legal issue was the interpretation and scope of the statutory warranty, specifically whether the council's policy on aircraft noise was a matter "affecting" the land within the meaning of the relevant legislation. The court had to determine whether the council's policy constituted a risk that would have affected the purchaser's decision to enter into the contract. Additionally, the court examined the meaning of the requirement that the purchaser would not have entered into the contract if aware of the existence of the council's policy.

The court found that the council's policy on aircraft noise was indeed a matter affecting the land, as it had the potential to restrict development and thereby affect the value and usability of the land. The court applied a purposive interpretation of the remedial and reformatory legislation, taking into account the ejusdem generis and noscitur a sociis rules to understand the scope of the statutory warranty. Ultimately, the court determined that the failure to disclose the council's policy on aircraft noise in the s 149 certificate constituted a breach of the statutory warranty, entitling Mandalidis to rescind the contract.

In its final orders, the court granted Mandalidis the right to rescind the contract for the sale of land and awarded damages for the loss incurred as a result of the breach. The court emphasised the importance of full disclosure in contracts for the sale of land and the need for vendors to comply with statutory requirements to avoid potential rescission by the purchaser.

Orders