Samuel v Daher; Daher v Samuel

The case between Samuel and Daher revolves around a dispute concerning a contract for the sale of a property. The central issue was whether the purchaser, Samuel, was entitled to rescind the contract for the sale of the property, and if so, whether he was entitled to the return of his deposit. The dispute also involved whether indemnity costs should be awarded given the existence of a Calderbank offer made by the vendor, Daher. The matter was heard and determined in the Supreme Court of New South Wales.

The legal issues that the Court needed to address included the interpretation and application of section 52A(4) of the Conveyancing Act 1919 (NSW) in relation to the annexing of a swimming pool compliance certificate, the validity of the rescission of the contract by the purchaser, the circumstances under which a deposit should be returned, and the appropriate approach to awarding costs in light of a Calderbank offer. The Court considered whether the absence of the swimming pool compliance certificate was a material defect that entitled the purchaser to rescind the contract and, if so, the implications for the deposit and costs.

The Court found that the absence of the swimming pool compliance certificate was a material defect that entitled Samuel to rescind the contract under the provisions of the Conveyancing Act. The Court held that section 52A(4) did not avoid the special condition requiring the certificate, thus affirming the purchaser's right to rescind. The rescission was considered valid, and the Court ordered the return of the deposit to Samuel. Regarding costs, the Court noted the Calderbank offer made by Daher but ultimately decided that indemnity costs should not be awarded given the circumstances of the case.

The final orders of the Court were that the contract for the sale of the property be rescinded, the deposit returned to Samuel, and that indemnity costs should not be awarded despite the Calderbank offer. The Court's decision underscored the importance of strict compliance with contractual obligations and the consequences for non-compliance, as well as the nuanced approach to costs in light of settlement offers.