Pollak v Yapp

The appeal concerned a contract for the sale of land where the purchasers, Pollak, alleged the vendor, Yapp, had breached a special condition requiring the vendor to ensure all development conditions were complied with prior to completion. The dispute centred on whether this condition, coupled with a disclosure in the contract, amounted to a warranty that all works subject to the development approval had been completed. The purchasers argued that certain works, specifically a lower staircase, had not been completed in conformity with the development consent, and that the vendor had failed to provide a satisfactory occupation certificate. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were: first, whether the special condition in the contract, read in conjunction with the disclosure regarding the staircase, constituted a warranty that all works the subject of the development approval had been completed; and second, whether the provision of an interim occupation certificate, which certified some but not all of the works, was capable of satisfying the vendor's obligation to provide an occupation certificate for the entire premises. The court also considered the meaning of an "altered portion" of an existing building in the context of occupation certificates.

The Court of Appeal held that the special condition did not operate as a warranty that all works subject to the development approval had been completed. The disclosure that the lower staircase required replacement was interpreted as an acknowledgement that some works might not be fully compliant, rather than a representation that all works were completed. Furthermore, the court found that an interim occupation certificate could satisfy the vendor's obligation, as it certified the lawful occupation of the altered portion of the building, which was the subject of the development approval. The court reasoned that an occupation certificate relates to the lawful occupation of the premises or the altered portion thereof, and an interim certificate was sufficient in this instance.

The appeal was dismissed with costs.