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Munro v Bodrex Pty Ltd

Munro v Bodrex Pty Ltd

Case [2002] NSWSC 122 6 March 2002

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CITATION: MUNRO & ANOR v. BODREX P/L [2002] NSWSC 122

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): SC 5212/01

HEARING DATE(S): 07/02/2002

JUDGMENT DATE: 6 March 2002

PARTIES :

Catherine Isobel Munro and Neil Alexander Munro - Plaintiffs
Bodrex Pty Ltd ACN 087 483 074 - Defendant

JUDGMENT OF: Bryson J at 1

COUNSEL : R.J. Powell - Plaintiffs
T. Lynch - Defendant

SOLICITORS: Loder & Loder - Plaintiffs
Sachs Gerace Lawyers - Defendant

CATCHWORDS: VENDOR and PURCHASER - matters arising between contract and completion - rescission - sale off-the-plan of home unit in proposed Strata Plan of building not yet built - Special Condition gave vendor right of rescission if Strata Plan not registered by 8 October - plan registered on 5 November - consideration of facts relating to causes of delay and grounds given by Council officers for not granting consent to Strata Plan - found that non-registration was caused by breaches of contract by vendor and purported rescission was not effective.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 subs.79C(4)

CASES CITED: Peters (WA) Ltd v. Petersville Ltd (2001) 75 ALJR 1385
Plumor Pty Ltd v. Handley (1996 ) 41 NSWLR 30
Hunyor & Anor v. Tilelli (1997) 8BPR [97667] 15,629
Woodcock v. Parlby Investments Pty Ltd (1988) 4 BPR 97301
Pierce Bell Sales Pty Ltd v. Frazer (1973) 130 CLR 575 at 590

DECISION: Order for specific performance and other relief: see [72]

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J

WEDNESDAY 6 MARCH 2002

5212/01 CATHERINE ISOBEL MUNRO & ANOR v. BODREX PTY LTD

JUDGMENT

1 HIS HONOUR: The purchasers (the plaintiffs) challenge an exercise by the vendor (the defendant) of a right of rescission of a contract for the sale “Off-the-Plan” of a home unit where the Strata Plan was not registered within the period for which the contract provided.

2 By Contract dated 8 October 1999 the vendor agreed to sell and the purchasers agreed to buy home unit 3 at 2 Myola Street, Newport, for $720,000; and the purchasers then paid the agreed deposit of $36,000. The home unit was described as Lot 3 in an unregistered plan, and incorporated a garage. A building containing 5 units was to be built on part of Lot 24 Deposited Plan 7424, an irregularly shaped parcel at the northern intersection of Ross Street and Myola Street where there had formerly been a dwelling which was to be wholly redeveloped. The contract was on the 1996 edition contract form but Printed cl.28 was deleted. Building plans were annexed.

3 Special Condition 40.1 provided:

40. CONSTRUCTION OF BUILDING AND DEFECTS LIABILITY

4 Special Condition 37 provided, among other things:

37. REGISTRATION OF THE STRATA PLAN

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 Munro v Bodrex Pty Ltd

Details

AGLC: Munro v Bodrex Pty Ltd [2002] NSWSC 122
Case: [2002] NSWSC 122
Decision Date: 6 March 2002

CaseChat Overview and Summary

In Munro v Bodrex Pty Ltd, the dispute arose between a vendor, Munro, and a purchaser, Bodrex Pty Ltd, concerning the sale of an off-the-plan home unit. The transaction was yet to be completed as the building was not constructed, and the sale hinged on the registration of a Strata Plan. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court involved the interpretation and application of a special condition in the contract, which granted the vendor the right to rescind the sale if the Strata Plan was not registered by 8 October. The Strata Plan was ultimately registered on 5 November, and the vendor sought to rescind the contract on that basis. The court had to determine whether the vendor's right to rescind was validly exercised and whether any circumstances justified the delay in registering the Strata Plan.

The court examined the causes of the delay in registering the Strata Plan and the reasons provided by the council officers for not granting consent. It found that the non-registration was attributable to breaches of contract by the vendor, which directly contributed to the delay. The court held that the vendor's purported rescission was ineffective because it was not exercised within the stipulated timeframe and was based on a condition that was breached by the vendor themselves. The court emphasised that the vendor's own actions were a significant factor in the delay, and thus the rescission was not permissible.

The final orders of the court reflect its determination that the vendor's attempt to rescind the contract was invalid. The sale proceeded as per the original terms, and the purchaser was entitled to specific performance or damages, as appropriate. The vendor's liability for any losses incurred by the purchaser due to the delay was also considered.

Orders