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Masters v Belpate Pty Ltd

Masters v Belpate Pty Ltd

Case [2001] NSWSC 169 20 March 2001

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Reported Decision:
(2001) NSW ConvR 55-988

New South Wales

Supreme Court

CITATION: Masters & Ors. v. Belpate Pty. Ltd. [2001] NSWSC 169

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4148/98

HEARING DATE(S): 29, 30, 31 January, 1, 2 February, 1 March 2001

JUDGMENT DATE:
20 March 2001

PARTIES :

Ray Masters - 1st plaintiff
Rhonda Elizabeth Druce - 2nd plaintiff
Allen Pennington - 3rd plaintiff
Michael Tattersall - 4th plaintiff
Leana Gai Mills - 5th plaintiff
Fadia Najib Matouk - 6th plaintiff
Belpate Pty. Limited - defendant

JUDGMENT OF: Hodgson CJinEq at 1

COUNSEL : Mr. C. Harris for plaintiffs
Mr. A. Gruzman for defendant

SOLICITORS: Willis & Bowring, Miranda for plaintiffs
McBride Harle & Martin, Hurstville for defendant

CATCHWORDS: CONVEYANCING - Vendor and purchaser - Units purchased from plan - Condition that if strata plan not registered within 30 months, either party could rescind - Promise by vendor to do everything reasonably necessary - Strata plan not registered within 30 months and vendor rescinds - Whether delay by architect and engineers involves breach by vendor - Whether failure to register plan caused by breach.

CASES CITED: Plumor Pty. Ltd. v. Handley (1996) 41 NSWLR 30
Apollo Shower Screen Pty. Ltd. v. Building & Construction Industry Long Service Payments Corp. (1995) 1 NSWLR 561
Hawes v. Cuzeno Pty. Ltd. (1999) NSWSC 1167
Hunyor v. Tilelli (1997) 8 BPR 15,629
Woodcock v. Parlby Investments Pty. Ltd. (1988) 4 BPR 9568
Sanctuary Investments Pty. Ltd. v. St. Gregory's Armenian School Inc. (1998) 9 BPR 16,823

DECISION: See end of judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Tuesday 20th March 2001

NO. 4148 OF 1998
MASTERS & ORS. V. BELPATE PTY. LIMITED

JUDGMENT

1 In May 1995, the defendant Belpate purchased the property 486-496 President Avenue, Kirrawee, in respect of which the Sutherland Shire Council had, in November 1994, granted development approval for the construction of three blocks of home units, comprising forty five units in all.

2 Later that year, the defendant proceeded to sell units from the plan. On 13th October 1995, the defendant entered into a contract to sell Unit 41 to the first plaintiff Ray Masters for $155,000.00, and a contract to sell Unit 12 to the second plaintiff Rhonda Druce for $155,000.00. On 26th October 1995, the defendant entered into a contract to sell Unit 13 to the third plaintiff Allen Pennington for $155,000.00, and a contract to sell Unit 43 to the fourth and fifth plaintiffs Michael Tattersall and Leana Mills for $155,000.00.

3 It was an express term of each contract that completion was conditional on the registration of a strata plan at the Land Titles Office within thirty months from the date of the agreement, and that, if registration was not effected within that time, either party could rescind the contract. By a letter dated 10th July 1998, Belpate purported to rescind each contract, on the ground that the strata plan had not been…

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 Masters v Belpate Pty Ltd

Details

AGLC: Masters v Belpate Pty Ltd [2001] NSWSC 169
Case: [2001] NSWSC 169
Decision Date: 20 March 2001

CaseChat Overview and Summary

The case of Masters v Belpate Pty Ltd involved a dispute between the vendor and the purchaser regarding the sale of units. The purchaser had purchased units from a plan, and a condition was included in the contract stating that if the strata plan was not registered within 30 months, either party could rescind. Additionally, the vendor promised to do everything reasonably necessary to achieve registration. The strata plan was not registered within the stipulated timeframe, and the vendor subsequently rescinded the contract. The issue before the court was whether the delay caused by the architect and engineers constituted a breach by the vendor, and if the failure to register the plan was due to such a breach.

The court was required to determine if the vendor's failure to register the strata plan within the specified timeframe constituted a breach of contract, and if such a breach was due to the delay caused by the architect and engineers. It was also necessary to consider whether the delay was a breach of the vendor's promise to do everything reasonably necessary to achieve registration. Furthermore, the court had to decide if the delay by the architect and engineers constituted a breach of contract by the vendor and if the failure to register the plan was caused by such a breach.

The court found that the delay by the architect and engineers did not constitute a breach of contract by the vendor, as the vendor had taken all reasonable steps to achieve registration. The court held that the failure to register the plan was not due to any breach by the vendor. Consequently, the vendor's rescission of the contract was valid. The court ruled in favour of the vendor, stating that the purchaser was not entitled to specific performance of the contract.

The final orders of the court were that the vendor's rescission of the contract was valid, and the purchaser was not entitled to specific performance. The court dismissed the purchaser's claim and ordered the purchaser to pay the vendor's costs of the proceedings.

Orders