Marguerite Pocknell v Payce Properties Pty Ltd

CITATION:	Marguerite Pocknell v Payce Properties Pty Ltd [2008] NSWDC 5
HEARING DATE(S):	22/11/07
JUDGMENT DATE:	7 February 2008
JUDGMENT OF:	Rein SC DCJ
DECISION:	Verdict and judgment for the defendant. Plaintiffs to pay defendant's costs.
CATCHWORDS:	Contract for Sale of Land, whether validly rescinded, based on failure of vendor/developer to provide a certificate of insurance and/or to enter into a contract of insurance. Whether Option Deed is a Contract for Sale of land - Principles of construction of a commercial contract
LEGISLATION CITED:	Home Building Act 1989; s.96(1), s.96A, s.92 Home Building Regulation 2004; Cl.66, Cl.74(2) Home Building Amendment (Insurance Exemptions) Regulation 2003; Cl 57BC, Cl.74
CASES CITED:	Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Toll (FGCT) Pty Ltd (formerly Finemores GCT Pty Ltd) v Alphapharm Pty Ltd (2004) 219 CLR 165 Equuscorp Pty Ltd v HGT Investments Pty Ltd (2005) 218 CLR 47 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2 McCann v Switzerland Insurance Australia Ltd. (2000) 176 ALR 711 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276 Fitzgerald v Masters (1956) CLR 420
PARTIES:	Marguerite Pocknell (First Plaintiff) Tracy Davidson (Second Plaintiff) Paul Lytwyn (Third Plaintiff) Payce Properties Pty Ltd (Defendant)
FILE NUMBER(S):	2868 of 2007
COUNSEL:	Mr S. Wells (Plaintiffs) Mr D. Bruckner (Defendants)

JUDGMENT

1 The plaintiffs (for whom Mr S. Wells of Counsel appears) on 21 November 2003 entered into an option deed giving them the right to exercise an option for purchase of a unit in a development (known as The Waterfront at 8 Stromboli Strait Homebush Bay), being undertaken by the defendant Payce Properties Pty Ltd (“Payce”) (for whom Mr D. Bruckner of Counsel appears). The Option Deed annexed a form of contract upon which, if the option was exercised, the sale of the unit would proceed.

2 On or about 1 November 2006 the plaintiffs, having exercised their option to purchase, entered into a contract for sale, which I was informed was in identical terms to the form of contract which had been annexed to the Option Deed.

3 On 29 March 2007 the plaintiffs wrote to the defendant rescinding the Contract for Sale or purporting to rescind the contract, on the basis that no copy of a certificate of an insurance contract had been provided to them which was said to be a breach of Special Condition 36 of the Contract for Sale – which clause is in the following terms:

36 “Home Building Insurance
The vendor discloses that:
(a) under s96(1) of the Home Building Act 1989, it must not construct the property unless a contract of insurance that complies with the Act is in force in relation to that work;
(b) under clause 66 of the Home Building Regulation…