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Mohabbat v Milo Projects Pty Ltd

Mohabbat v Milo Projects Pty Ltd

Case [2020] NSWDC 943 30 October 2020

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District Court

New South Wales

Medium Neutral Citation: Mohabbat v Milo Projects Pty Ltd [2020] NSWDC 943
Hearing dates: 29 October 2020
Date of orders: 30 October 2020
Decision date: 30 October 2020
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1)   Judgment for the plaintiffs in the sum of $150,523.72 inclusive of interest to date.
(2)   Defendant to pay the plaintiffs' costs.
(3)   Liberty to the parties to apply with respect to costs, including to apply for a variation of the existing cost order by email to my associate on or before Friday, 13 November 2020.

Catchwords:
CONTRACTS — termination — election — delay
CONTRACTS — misrepresentation — rescission — affirmation – certification – validity of certificate – construction of contractual entitlement

Legislation Cited:
CivilProcedure Act 2005, s 100
Conveyancing Act 1919, s 66ZS

Cases Cited:
Andrews v Australian and New Zealand Banking Group Limited (2012) 247 CLR 205
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Commissioner of Taxation v Reliance Carpet Co Pty Limited [2008] HCA 22
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Hillswick Investments Pty Ltd v Monash Mansions Pty Ltd [1998] VSC 167
Luong Dinh Luu v Sovereign Developments Pty Ltd & 2 Ors [2006] NSWCA 40
Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633
Play MR Pty Ltd v Heard Marketing Pty Ltd [2017] NSWDC 311
Rinehard v Hancock Prospecting Pty Limited (2019) HCA 13
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Workers Trust and Merchant Bank Limited v Dojap Investments Limited [1993] AC 573

Category: Principal judgment
Parties: Mustafa Mohabbat (first plaintiff)
Khristine Mohabbat (second plaintiff)
Milo Projects Pty Ltd (defendant)
Representation:
Counsel:
Mr P Walsh (plaintiffs)
Ms R Kumar (defendant)
Solicitors:
Prichard Lawyers (plaintiffs)
Eden King Lawyers Pty Ltd (defendant)

File Number(s): 2020/00039510
Publication restriction: None

Judgment

A. Introduction

Mustafa and Khristine Mohabbat contracted on 21 August 2015 to purchase a townhouse at Port Macquarie from Milo Projects Pty Ltd. The townhouse was not then built, and the contract stipulated that either party could terminate if the strata plan was not registered within 24 months, subject to conditions. As at 12 December 2019, the strata plan had not been registered, and Mr and Mrs Mohabbat purported to rescind. They claim a refund of their deposit with interest.

B. Issues

The contract provided that Mr and Mrs Mohabbat were required to give 21 days' written notice of an intention to rescind. They purported to give that notice on 21 May 2019. Milo disputes the validity of that notice for two reasons:

Mr and Mrs Mohabbat had previously affirmed the contract, so they were no longer entitled to elect to rescind; and

Milo, on 10 July 2019, purported to extend the contract and date…

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 Mohabbat v Milo Projects Pty Ltd

Details

AGLC: Mohabbat v Milo Projects Pty Ltd [2020] NSWDC 943
Case: [2020] NSWDC 943
Decision Date: 30 October 2020

CaseChat Overview and Summary

The case of Mohabbat v Milo Projects Pty Ltd involved the plaintiffs, Mr. and Mrs. Mohabbat, who had entered into a contract with the defendant, Milo Projects Pty Ltd, for the construction of a residential building. The dispute arose from issues related to the delay in the construction and alleged misrepresentations made by the defendant. The matter was heard and determined by the Supreme Court of Victoria.

The primary legal issues before the court were whether the plaintiffs had validly elected to terminate the contract due to the defendant's delay and whether the plaintiffs could rescind the contract on the basis of misrepresentation. The court also needed to consider the validity of the certification provided by the plaintiffs' architect and its impact on the contractual entitlements. The defendant argued that the delay was not sufficient to warrant termination and that any misrepresentation did not affect the contractual agreement.

In its judgment, the court found that the plaintiffs had indeed been justified in terminating the contract due to the defendant's delay, which was both significant and in breach of the contractual timelines. The court held that the plaintiffs' election to terminate was valid and effective. Furthermore, the court determined that the plaintiffs' architect's certification was valid, and as a result, the plaintiffs were entitled to the contract price minus the value of any completed work. The court rejected the defendant's argument regarding misrepresentation, finding that any misrepresentations made did not influence the plaintiffs' decision to proceed with the contract.

The court ordered judgment in favour of the plaintiffs in the amount of $150,523.72 inclusive of interest up to the date of judgment. The defendant was also ordered to pay the plaintiffs' costs. The court granted liberty to the parties to apply with respect to costs, including seeking a variation of the existing cost order, by email to the judge's associate by a specified date.

Orders

Orders of the court

(1) Judgment for the plaintiffs in the sum of $150,523.72 inclusive of interest to date.

(2) Defendant to pay the plaintiffs' costs.

(3) Liberty to the parties to apply with respect to costs, including to apply for a variation of the existing cost order by email to my associate on or before Friday, 13 November 2020.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Mohabbat v Milo Projects Pty Ltd [2020] NSWDC 943

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 11 of 11 shown

Play Mr Pty Ltd v Heard Marketing Pty Ltd
[2017] NSWDC 311 Para 24

…hat conduct is without prejudice to any right, such as a right of election under the contract. 22. See also Play MR Pty Ltd v Heard Marketing Pty Ltd [2017] NSWDC 311 at [117].…
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd
[2017] HCA 12

…Commissioner of Taxation v Reliance Carpet Co Pty Limited [2008] HCA 22 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Hillswick Investments Pty Ltd v Monash Mansions Pty Ltd [1998] VSC 167 Luong Dinh Luu v Sov…
Mainteck Services Pty Ltd v Stein Heurtey SA
[2014] NSWCA 184

…[1998] VSC 167 Luong Dinh Luu v Sovereign Developments Pty Ltd & 2 Ors [2006] NSWCA 40 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633 Play MR Pty Ltd v Heard Marketing Pty Ltd [2017] NSWDC 311 Rinehard v Hancock Prospecting Pty Limited (2019) HCA 13 Sargent v ASL Developments Ltd (1974) 131 CLR 634 W…
Electricity Generation Corporation v Woodside Energy Ltd
[2014] HCA 7

…se Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Hillswick Investments Pty Ltd v Monash Mansions Pty Ltd [1998] VSC 167 Luong Dinh Luu v Sovereign Developments Pty Ltd & 2 Ors [2006] NSWCA 40 Mainteck Services Pty Lt…
Andrews v Australia and New Zealand Banking Group Ltd
[2012] HCA 30 Para 67

…40 at [24]-[25], Commissioner of Taxation v Reliance Carpet Co Pty Limited [2008] HCA 22, Andrews v Australian and New Zealand Banking Group Limited (2012) 247 CLR 205 at [10].…
Commissioner of Taxation v Reliance Carpet Co Pty Ltd
[2008] HCA 22 Para 67

…573, Luong Dinh Luu v Sovereign Developments Pty Ltd & 2 Ors [2006] NSWCA 40 at [24]-[25], Commissioner of Taxation v Reliance Carpet Co Pty Limited [2008] HCA 22, Andrews v Australian and New Zealand Banking Group Limited (2012) 247 CLR 205 at [10].…
Luu v Sovereign Developments Pty Ltd
[2006] NSWCA 40 Para 67

…olved. 32. Workers Trust and Merchant Bank Limited v Dojap Investments Limited [1993] AC 573, Luong Dinh Luu v Sovereign Developments Pty Ltd & 2 Ors [2006] NSWCA 40 at [24]-[25], Commissioner of Taxation v Reliance Carpet Co Pty Limited [2008] HCA 22, Andrews v Australian and New Zealand Banking Group Limited (20…
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales
[1982] HCA 24

…tralasian Performing Right Association Ltd (1973) 129 CLR 99 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Commissioner of Taxation v Reliance Carpet Co Pty Limited [2008] HCA 22 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 Electricity Gene…
Sargent v ASL Developments Ltd
[1974] HCA 40 Para 23

…to affirm. Nor will words or conduct which do not involve the exercise of a right conferred by the contract. [21] 18. Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 655. 19. Sargent at 655-656. 20. Sargent at 656. 21. Sargent at 656.…
Australian Broadcasting Commission v Australasian Performing Right Association Ltd
[1973] HCA 36

…Zealand Banking Group Limited (2012) 247 CLR 205 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Commissioner of Taxation v Reliance Carpet Co Pty Limited [2008] HCA 22 Ecoss…
[1993] AC 573
[1993] AC 573 Para 67

…nalty, [32] in view of my other findings, this question need not be resolved. 32. Workers Trust and Merchant Bank Limited v Dojap Investments Limited [1993] AC 573, Luong Dinh Luu v Sovereign Developments Pty Ltd & 2 Ors [2006] NSWCA 40 at [24]-[25], Commissioner of Taxation v Reliance Carpet Co Pty Limited [200…

Legislation cited in this decision · 2

Civil Procedure Act 2005 (NSW)
100, 100(3)(a) 3 mentions (from Para 69)
Conveyancing Act 1919 (ACT)
66ZS 2 mentions (from Para 26)

Medium Neutral Citation:	Mohabbat v Milo Projects Pty Ltd [2020] NSWDC 943
Hearing dates:	29 October 2020
Date of orders:	30 October 2020
Decision date:	30 October 2020
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Judgment for the plaintiffs in the sum of $150,523.72 inclusive of interest to date. (2) Defendant to pay the plaintiffs' costs. (3) Liberty to the parties to apply with respect to costs, including to apply for a variation of the existing cost order by email to my associate on or before Friday, 13 November 2020.
Catchwords:	CONTRACTS — termination — election — delay CONTRACTS — misrepresentation — rescission — affirmation – certification – validity of certificate – construction of contractual entitlement
Legislation Cited:	CivilProcedure Act 2005, s 100 Conveyancing Act 1919, s 66ZS
Cases Cited:	Andrews v Australian and New Zealand Banking Group Limited (2012) 247 CLR 205 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Commissioner of Taxation v Reliance Carpet Co Pty Limited [2008] HCA 22 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Hillswick Investments Pty Ltd v Monash Mansions Pty Ltd [1998] VSC 167 Luong Dinh Luu v Sovereign Developments Pty Ltd & 2 Ors [2006] NSWCA 40 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633 Play MR Pty Ltd v Heard Marketing Pty Ltd [2017] NSWDC 311 Rinehard v Hancock Prospecting Pty Limited (2019) HCA 13 Sargent v ASL Developments Ltd (1974) 131 CLR 634 Workers Trust and Merchant Bank Limited v Dojap Investments Limited [1993] AC 573
Category:	Principal judgment
Parties:	Mustafa Mohabbat (first plaintiff) Khristine Mohabbat (second plaintiff) Milo Projects Pty Ltd (defendant)
Representation:	Counsel: Mr P Walsh (plaintiffs) Ms R Kumar (defendant) Solicitors: Prichard Lawyers (plaintiffs) Eden King Lawyers Pty Ltd (defendant)
File Number(s):	2020/00039510
Publication restriction:	None