R v Crombie - [1999] NSWCA 297

Reported Decision: (2000) NSWConvR 55-925

New South Wales

Court of Appeal

CITATION: Vamiso Pty Ltd v Chopard & Anor [1999] NSWCA 297

FILE NUMBER(S): CA 40018/99

HEARING DATE(S): 10 August 1999

JUDGMENT DATE:
16 November 1999

PARTIES :

Vamiso Pty Ltd - Appellant
J P & G Chopard - Respondents

JUDGMENT OF: Sheller JA at 1; Stein JA at 2; Giles JA at 3

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S) : EQ 2226/97

LOWER COURT JUDICIAL OFFICER: Young J

COUNSEL: S D Rares SC & M A Ashurst - Appellant
B A J Coles QC & C J Leggat - Respondents

SOLICITORS: Henry Davis York, Sydney - Appellant
Dickson Fisher Macansh, Sydney - Respondents

CATCHWORDS: VENDOR AND PURCHASER - contract conditional on vendor obtaining development and subdivision approvals for adjoining land - vendor could terminate if development approval not "on terms and conditions acceptable to the vendor in all respects" - deferred approval granted subject to release of restriction as to user - restriction as to user burdened part only of adjoining land - vendor terminated - whether condition on development approval a term or condition within the power to terminate - whether not acceptable to the vendor - whether vendor had to terminate within a limited time.

DECISION: Appeal allowed. Declaration and orders made by Young J on 4 December 1998 set aside and in lieu thereof order that the proceedings are dismissed with costs. The purchasers to pay the vendor's costs of the appeal but have a certificate under the Suitors Fund Act if qualified.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40018/99
ED 2226/97

SHELLER JA
STEIN JA
GILES JA

Tuesday 16 November 1999

VAMISO PTY LTD v CHOPARD & ANOR
JUDGMENT

1 SHELLER JA: I agree with Giles JA. 2 STEIN JA: I agree with Giles JA. 3 GILES JA: By a contract dated 28 May 1996 Vamiso Pty Ltd (“Vamiso”) agreed to sell and Mr and Mrs Chopard agreed to purchase for the sum of $1,500,000 a parcel of land at Hunters Hill in Sydney (“the property”). The property was described as lot 137 in an unregistered plan of subdivision a copy of which was attached to the contract. By a clause which I will shortly set out in full completion of the contract was conditional upon the vendor obtaining development and subdivision approvals. 4 On 8 April 1997 the vendor purported to rescind the contract on the ground that the development approval it obtained was not, in the terms of the clause, “acceptable to the vendor in all respects”. 5 The purchasers brought proceedings claiming specific performance of the contract. On 4 December 1998 Young J declared that the contract remained on foot and ordered that it be specifically performed and carried into effect. 6 The vendor appealed from his Honour’s decision. The issue on appeal was whether the purported rescission was effective.

The property and the contract

7 The property was in…

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 R v Crombie

Details

AGLC: R v Crombie [1999] NSWCA 297
Case: [1999] NSWCA 297
Decision Date: 16 November 1999

CaseChat Overview and Summary

The dispute in *R v Crombie* concerned a contract for the sale of land, where the vendor sought to terminate the agreement. The contract was conditional upon the vendor obtaining development and subdivision approvals for adjoining land. A key clause stipulated that the vendor could terminate if these approvals were not "on terms and conditions acceptable to the vendor in all respects." The vendor purported to terminate the contract after a deferred approval was granted, subject to the release of a restriction as to user that burdened only part of the adjoining land. The purchasers challenged the validity of this termination. The matter came before the Court of Appeal of New South Wales, comprising Sheller, Stein, and Giles JJA.

The central legal issues before the Court of Appeal were whether the condition imposed on the development approval, namely the release of the restriction as to user, constituted a "term or condition" within the meaning of the vendor's termination right. The court also had to determine whether this condition was indeed "not acceptable to the vendor in all respects" as required for termination, and whether the vendor had exercised its right to terminate within any implied limited time.

The Court of Appeal reasoned that the restriction as to user was a burden on the adjoining land, and its release was a necessary step for the development to proceed as intended. Therefore, the condition imposed by the consent authority was a term or condition directly related to the development approval. The court found that the vendor was not obliged to accept a development approval that required the release of a restriction on part of the adjoining land, as this was not acceptable to the vendor in all respects. The court further held that the vendor was entitled to terminate the contract as soon as it became apparent that the approval would be granted subject to this condition, and that the termination was validly exercised.

The appeal was allowed. The declaration and orders made by Young J were set aside, and in their place, an order was made dismissing the proceedings with costs. The purchasers were ordered to pay the vendor's costs of the appeal, with a certificate under the Suitors Fund Act available to the purchasers if they qualified.

Orders

Orders of the court

Appeal allowed. Declaration and orders made by Young J on 4 December 1998 set aside and in lieu thereof order that the proceedings are dismissed with costs. The purchasers to pay the vendor's costs of the appeal but have a certificate under the Suitors Fund Act if qualified.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Vamiso Pty Ltd v Chopard & Anor [1999] NSWCA 297
FILE NUMBER(S):	CA 40018/99
HEARING DATE(S):	10 August 1999
JUDGMENT DATE:	16 November 1999
PARTIES :	Vamiso Pty Ltd - Appellant J P & G Chopard - Respondents
JUDGMENT OF:	Sheller JA at 1; Stein JA at 2; Giles JA at 3

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	EQ 2226/97
LOWER COURT JUDICIAL OFFICER:	Young J

COUNSEL:	S D Rares SC & M A Ashurst - Appellant B A J Coles QC & C J Leggat - Respondents
SOLICITORS:	Henry Davis York, Sydney - Appellant Dickson Fisher Macansh, Sydney - Respondents
CATCHWORDS:	VENDOR AND PURCHASER - contract conditional on vendor obtaining development and subdivision approvals for adjoining land - vendor could terminate if development approval not "on terms and conditions acceptable to the vendor in all respects" - deferred approval granted subject to release of restriction as to user - restriction as to user burdened part only of adjoining land - vendor terminated - whether condition on development approval a term or condition within the power to terminate - whether not acceptable to the vendor - whether vendor had to terminate within a limited time.
DECISION:	Appeal allowed. Declaration and orders made by Young J on 4 December 1998 set aside and in lieu thereof order that the proceedings are dismissed with costs. The purchasers to pay the vendor's costs of the appeal but have a certificate under the Suitors Fund Act if qualified.