McIntosh v Hadco Constructions Pty Limited

McIntosh (the appellant) sought to appeal a decision of the Supreme Court of New South Wales concerning an option to purchase residential property granted by Hadco Constructions Pty Limited (the respondent). The dispute centred on the validity of this option agreement.

The primary legal issue before the Court of Appeal was whether the option to purchase was void pursuant to section 66ZG(1) of the *Conveyancing Act 1919* (NSW). This section requires that both parties to a contract for the sale or purchase of residential property must sign counterparts of the contract. The appellant argued that the option was void because only the grantor (Hadco) and the grantee (McIntosh) had signed counterparts, and no nominee had been identified or signed at the time the counterparts were exchanged.

The Court of Appeal, in dismissing the appeal, reasoned that section 66ZG(1) of the *Conveyancing Act 1919* applies to contracts for the sale or purchase of residential property. An option to purchase, however, is not a contract for sale or purchase at the time it is granted; it is an offer to sell which may or may not be exercised. Therefore, the requirements of section 66ZG(1) did not apply to the grant of the option itself. The court affirmed that the option was validly granted, and the subsequent nomination of a nominee by the grantee was permissible.

The appeal was dismissed with costs.