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Rona v Shimden Pty Ltd

Rona v Shimden Pty Ltd

Case [2005] NSWSC 818 29 August 2005

Contract Formation

Repudiation & Termination

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CITATION:
Rona v Shimden Pty Ltd & 1 Or [2005] NSWSC 818

HEARING DATE(S): 04/07/05, 05/07/05; written submissions 29/07/05

JUDGMENT DATE :

29 August 2005

JUDGMENT OF:
White J

DECISION:
See paragraph 98 of judgment.

CATCHWORDS:
CONVEYANCING - Contract for sale of land - Purchaser seeks return of deposit - Where purchaser purported to rescind for vendor's failure to provide release of restrictive covenant - Where vendor purported to terminate for purchaser's failure to complete - Construction of term granting right to rescind - Vendor's notices to complete invalid - Whether vendor able to complete - Who could release covenant - Both parties had purported to rescind and both had repudiated contract - Vendor also purported to accept purchaser's repudiation - Held neither party had terminated the contract - Contract had been abandoned - Purchaser entitled to deposit.

LEGISLATION CITED:
Real Property Act 1900 (NSW)

CASES CITED:
McNally v Waitzer [1981] 1 NSWLR 294
Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286
Louinder v Leis (1982) 149 CLR 509
Cripps v Irwin (1931) 31 SR (NSW) 383
Barnes v Weekes (1987) NSW ConvR 55-338
Aberfoyle Plantations Ltd v Cheng [1960] AC 115
Gilbert v Healey Investment Pty Ltd [1975] 1 NSWLR 650
Brien v Dwyer (1978) 141 CLR 378
Fitzgerald v Masters (1956) 95 CLR 420
Mayner v Payne [1914] 2 Ch 555
Bell v Norman C. Ashton Ltd (1956) 7 P & CR 359
Mr P R Watts, "Variation of Restrictive Covenants, Real Property Act 1900 (NSW), (1947) 21 ALJ 225"
Foran v Wight (1989) 168 CLR 385
Abela v Lawnside Holdings Pty Ltd (1988) 4 BPR 9443
Fekala Pty Ltd v Castle Constructions Pty Ltd (2002) 11 BPR 20,395; [2003] NSW ConvR 56-042
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1977) 138 CLR 423
Sindel v Georgiou (1984) 154 CLR 661
British & Commonwealth Holdings plc v Quadrex Holdings Inc [1989] QB 842
Lohar Corporation Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177
Summers v The Commonwealth (1918) 25 CLR 144
Dimond v Moore (1931) 45 CLR 159
Satellite Estate Pty Ltd v Jacquet (1968) 71 SR (NSW) 126
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Shevill v Builders Licensing Board (1982) 149 CLR 620
Sweet & Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699
Frost v Knight (1872) LR7Exch 111
Thors v Weekes (1989) 92 ALR 131
Kyrwood & Ors v Drinkwater & Ors [2000] NSWCA 126

PARTIES:
Imam Huseyin Rona
v
Shimden Pty Limited & 1 Or

FILE NUMBER(S):
SC 2981/04

COUNSEL:
Plaintiff: Mr J Boxsell (sol); Mr G McNally (written submissions)
Defendant: Mr M Condon

SOLICITORS:
Plaintiff: Williams Boxsell Georgas
Defendant: David Legal

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Monday, 29 August 2005

2981/04 Imam Huseyin Rona v Shimden Pty Limited & 1 Or

JUDGMENT

1 HIS HONOUR: The issue in this case is whether the purchaser rescinded or…

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 Rona v Shimden Pty Ltd

Details

AGLC: Rona v Shimden Pty Ltd [2005] NSWSC 818
Case: [2005] NSWSC 818
Decision Date: 29 August 2005

CaseChat Overview and Summary

Rona v Shimden Pty Ltd involved a dispute between the plaintiff, Rona, and the defendant, Shimden Pty Ltd, over the sale of a parcel of land. Rona had entered into a contract to purchase land from Shimden Pty Ltd. Upon discovering that a restrictive covenant was attached to the land, Rona attempted to rescind the contract based on the vendor's failure to provide a release of the covenant. Shimden Pty Ltd, on the other hand, claimed that Rona's failure to complete the purchase constituted a repudiation of the contract, and subsequently purported to terminate the contract.

The court was required to determine the validity of the rescission and termination notices. The primary legal issues were whether the notices to complete were valid, whether Shimden Pty Ltd could complete the contract by removing the restrictive covenant, and who was authorised to release the covenant. Additionally, the court had to ascertain whether either party had effectively terminated the contract or whether the contract had been abandoned.

The court found that the notices to complete were invalid as they did not comply with the contract terms. Furthermore, Shimden Pty Ltd was not authorised to complete the contract by removing the restrictive covenant, and only Rona could release the covenant. The court concluded that neither party had effectively terminated the contract, as both had purported to rescind and both had repudiated the contract. Shimden Pty Ltd had also purported to accept Rona's repudiation, which did not result in termination but rather abandonment of the contract. Consequently, the contract was deemed abandoned, and Rona was entitled to the return of her deposit.

The court ordered Shimden Pty Ltd to return the deposit to Rona, reflecting the abandonment of the contract and the absence of any valid termination by either party.

Orders