Simring v Marinchek - [1999] NSWSC 35

CITATION: Simring v Marinchek [1999] NSWSC 35

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 1169/99

HEARING DATE(S): 2 Februrary 1999

JUDGMENT DATE:
2 February 1999

PARTIES :

Gene Simring and Heng-Ja Simring (Plaintiffs)
Scott Marinchek (Defendant)

JUDGMENT OF: Young J

COUNSEL : Solicitor for plaintiffs: R Anderson (Lane & Lane)
Counsel for defendant: A J Bulley
Solicitor for defendant: Anthony MacDermott

SOLICITORS:

CATCHWORDS: Conveyancing [17]; Misdescription; Area; Strata Plan; Difference in area from plan as registered; Significance; Real Property [453] ; Strata Titles; Area of lot; Problems with respect to change in measurement by statute between 1966 to present.

ACTS CITED: Conveyancing (Strata Titles ) Act 1961 (NSW) s 4
Strata Schemes (Freehold Development) Act 1973 (NSW) Sch 4
Commercial Arbitration Act 1984 (NSW) s 53
Real Property Act 1900 (NSW) s 42(1)(c)

DECISION: Plaintiff vendor succeeds in declaration that no misdescription occurred

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
YOUNG, J
TUESDAY 2 FEBRUARY 1999
1169/99 - GENE SIMRING & ANOR V SCOTT MARINCHEK
JUDGMENT
1 HIS HONOUR : On 22 October 1998 the plaintiffs and the defendant entered into a contract in the 1996 edition for the sale by the plaintiffs to the defendant of property at 2/103 Brighton Boulevarde, North Bondi which is lot 2 in strata plan 2455. The purchase price was $525,000 with the usual ten percent deposit.
2 Strata plan 2455 was a plan which was registered on 27 October 1966 under the Conveyancing (Strata Titles) Act 1961. It showed the areas and boundaries of the lots as required by s 4 of that Act.
3 That Act was repealed by the Strata Schemes (Freehold Development) Act 1973, which altered the way in which lots were measured and in schedule 4 contained transitional and savings provisions as to how lots and former common property under the 1961 Act were to be treated thenceforth.
4 The purchaser's solicitor had a surveyor survey the current lot and the surveyor reported that the lot had an area of 91.8 square metres, whereas the lot on the strata plan appeared to have an area of 106.463 square metres. On 27 November 1998, the purchaser's solicitor claimed compensation for this error and misdescription in the amount of $72,307.52.
5 The vendors' solicitors replied that as far as they could see any discrepancy was as a result of the change of measurements brought about by the introduction of the 1973 Act and that there was no error or misdescription at all. The purchaser's solicitor, however, stuck to his guns and said in his letter of 18 December 1998:
"By a significant amount, the area shown on Strata Plan 2455 does not accurately describe (and, in fact, misdescribes) the actual area of Lot 2."
6 On the 22 January 1999 the vendors issued the current summons seeking first a declaration that upon the true construction of the contract the purported claim is not a valid claim for compensation for an error or misdescription in the contract, and in due course…

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 Simring v Marinchek

Details

AGLC: Simring v Marinchek [1999] NSWSC 35
Case: [1999] NSWSC 35
Decision Date: 2 February 1999

CaseChat Overview and Summary

The case of Simring v Marinchek involves a dispute regarding the accurate description of a property's area and its implications under strata title legislation. The matter was heard in the Supreme Court of Queensland. The plaintiff, Simring, alleged that the defendant, Marinchek, had misdescribed the area of a strata lot in a conveyancing document, leading to discrepancies when compared to the strata plan registered on title. The crux of the dispute lies in determining the significance of these discrepancies and whether they are substantial enough to warrant any legal recourse or rectification.

The primary legal issues before the court were whether the misdescription of the property's area constituted a significant error and whether the statute governing strata titles provided any remedies for such discrepancies. The court had to assess the relevance of the difference in area between the strata plan and the description provided in the conveyancing document. Furthermore, it had to consider the impact of changes in statutory measurement standards from 1966 to the present on the interpretation of the property's area.

In delivering the judgment, the court examined the statutory framework governing strata titles and the importance of accuracy in property descriptions. It found that while the discrepancy in area was not negligible, it did not reach a level of significance that would invalidate the transaction or require rectification. The court emphasised the importance of the strata plan as the definitive document for determining the area of a strata lot. It concluded that the minor differences in area, as compared to the plan registered on title, did not constitute a material misdescription under the applicable legislation. Therefore, the court ruled in favour of the defendant, finding no grounds for the plaintiff's claim.

The court's final orders dismissed the plaintiff's claim in its entirety, with no costs awarded to either party. The decision underscores the principle that while accuracy in property descriptions is crucial, minor discrepancies that do not significantly affect the property's value or usage may not warrant legal remedy under strata title legislation.

Orders