Reported Decision: (2007) ANZ Conv R 13
(2007) Q Conv R 54-660
(2006) NSW ConvR 56-166
Court of Appeal
CITATION: SHIMDEN PTY LTD v RONA [2006] NSWCA 256 HEARING DATE(S): 31/08/2006
JUDGMENT DATE:
19 September 2006JUDGMENT OF: Handley JA at 1; Hodgson JA at 2; Bryson JA at 3 DECISION: (1) The appeal is allowed to the extent only of varying the orders of White J by deleting Declarations 1 and 2; (2) Save as aforesaid the orders of White J are affirmed; (3) The Cross-appeal is dismissed; (4) Order that the appellant pay the respondent’s costs of the appeal; (5) Order that each party pay its or his own costs of the cross-appeal CATCHWORDS: VENDOR AND PURCHASER – rescission of contract of sale of land – S.C.45, not a standard clause, authorised rescission by either party if vendor unable to provide registered lease and discharge of covenant by “completion date” – whether “completion date” was actual time of completion or completion date as stated by terms of contract – held, the latter. Consideration of questions relating to the effect of steps taken by parties in reliance on conflicting positions on effect of purchaser’s termination for non-compliance with S.C.45. Observations on significance of notice period before termination became effective. CASES CITED: Aberfoyle Plantation Ltd v Cheng [1968] AC 115
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Breen v Williams (1996) 186 CLR 71
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Foran v Wight (1989) 168 CLR 385
Gilbert & Anor v Healey Investment Pty Ltd [1975] 1 NSWLR 650
Heimann v The Commonwealth of Australia (1938) 38 SR 691
Rawson v Hobbs (1961) 107 CLR 466
Secured Income Real Estate v St Martin’s Investments Pty Ltd (1979) 144 CLR 596
Treloar Nominees Pty Ltd v Buttrey (1977) 1 BPR 9672
Turnstila Pty Ltd v North Shore Gas Co. Ltd (1981) NSW Conv R 55-011PARTIES: Shimden P/L - Appellant
Imam Huseyin Rona - RespondentFILE NUMBER(S): CA CA 40777/2005 COUNSEL: Appellant’s counsel: J.C. Kelly SC/M. Condon
Respondent’s counsel: G. McNallySOLICITORS: Appellant’s solicitor: David Legal
Respondent’s solicitor: Williams Boxsell Georgas
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): ED 2981/04 LOWER COURT JUDICIAL OFFICER: White J LOWER COURT DATE OF DECISION: 29/08/2005 LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 818
CA 40777 OF 2005
TUESDAY 19 SEPTEMBER 2006HANDLEY JA
HODGSON JA
BRYSON JA
SHIMDEN PTY LTD v IMAM HUSEYIN RONA
Judgment
1 HANDLEY JA: I agree with Bryson JA.
2 HODGSON JA: I agree with Bryson JA.
3 BRYSON JA: This appeal turns principally on the meaning and effect of a special condition in a contract for sale of land; the special condition is not in a standard form. By contract for sale of land (Blue 1/52) dated 2 December 2003 the appellant Shimden Pty Ltd as vendor agreed to sell to the respondent Imam Huseyin Rona as purchaser land…
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Details
- AGLC
- Shimden Pty Ltd v Rona [2006] NSWCA 256
- Case
- [2006] NSWCA 256
- Decision Date
CaseChat Overview and Summary
Shimden Pty Ltd (the vendor) and Rona (the purchaser) were parties to a contract for the sale of land. The dispute concerned the vendor's ability to rescind the contract under clause S.C.45, which permitted rescission by either party if the vendor was unable to provide a registered lease and a discharge of a covenant by the "completion date". The purchaser had purported to terminate the contract, and the vendor sought declarations regarding the validity of this termination and its own rights under the contract. The matter came before the Supreme Court of New South Wales, Court of Appeal.
The primary legal issue before the Court of Appeal was the interpretation of the term "completion date" within clause S.C.45. Specifically, the court had to determine whether this referred to the actual time of completion or the completion date as stipulated in the terms of the contract. Further questions arose regarding the effect of actions taken by the parties in reliance on their respective, and apparently conflicting, interpretations of the contract, particularly in relation to the purchaser's termination for non-compliance with clause S.C.45. The significance of any notice period required before termination became effective was also a consideration.
The Court of Appeal, comprising Handley JA, Hodgson JA, and Bryson JA, held that the "completion date" in clause S.C.45 referred to the date for completion as stated in the contract, not the actual time of completion. The court reasoned that this interpretation gave effect to the contractual provisions and the parties' intentions. The court allowed the appeal in part, varying the orders of White J by deleting certain declarations, but otherwise affirmed the original orders. The cross-appeal was dismissed. The appellant was ordered to pay the respondent's costs of the appeal, with each party to bear their own costs of the cross-appeal.
The primary legal issue before the Court of Appeal was the interpretation of the term "completion date" within clause S.C.45. Specifically, the court had to determine whether this referred to the actual time of completion or the completion date as stipulated in the terms of the contract. Further questions arose regarding the effect of actions taken by the parties in reliance on their respective, and apparently conflicting, interpretations of the contract, particularly in relation to the purchaser's termination for non-compliance with clause S.C.45. The significance of any notice period required before termination became effective was also a consideration.
The Court of Appeal, comprising Handley JA, Hodgson JA, and Bryson JA, held that the "completion date" in clause S.C.45 referred to the date for completion as stated in the contract, not the actual time of completion. The court reasoned that this interpretation gave effect to the contractual provisions and the parties' intentions. The court allowed the appeal in part, varying the orders of White J by deleting certain declarations, but otherwise affirmed the original orders. The cross-appeal was dismissed. The appellant was ordered to pay the respondent's costs of the appeal, with each party to bear their own costs of the cross-appeal.
Orders
Orders of the court
(1) The appeal is allowed to the extent only of varying the orders of White J by deleting Declarations 1 and 2; (2) Save as aforesaid the orders of White J are affirmed; (3) The Cross-appeal is dismissed; (4) Order that the appellant pay the respondent's costs of the appeal; (5) Order that each party pay its or his own costs of the cross-appeal
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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