Tamanna v Zattere; Thakorlal v Zattere; Rabac Pty Ltd v Zattere [2017] NSWSC 1388
Hearing dates:
20 – 23 June 2016, 10 April, 22 and 24 August 2017
Date of orders:
12 October 2017
Decision date:
12 October 2017
Jurisdiction:
Equity
Before:
Darke J
Decision:
Purchasers entitled to loss of bargain damages following termination for vendor’s repudiation of contracts.
Catchwords:
LAND LAW – conveyancing – the contract for sale – rescission – “off the plan” purchases – vendors required to use either reasonable endeavours or best endeavours to cause plan of subdivision to be registered – plan not registered by required date – whether vendor entitled to rescind – rescissions ineffective
CONTRACTS – causation – principle that a party cannot exercise a right in reliance on an event that results from its own default – whether innocent party must prove that default materially contributed to the occurrence of the event or prove on balance of probabilities that default caused the event – party not able to exercise a right of rescission if it has materially contributed to the occurrence of the event that gives rise to the right
CONTRACTS – damages – date of assessment – where defendants repudiated contracts by invalid rescission – subject matter of contract subsequently sold by receiver – plaintiffs terminated contracts shortly before hearing – whether date of assessment is date of termination or earlier date – damages assessed at date of termination
CONTRACTS – damages – loss of bargain damages – requirement of plaintiff to prove it was ready, willing and able to perform its obligations – standards of readiness, willingness and ability for termination for breach and proof of damages – plaintiffs ready, willing and able to complete up to time of termination
[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.
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AGLC
Tamanna v Zattere [2017] NSWSC 1388
Case
[2017] NSWSC 1388
Decision Date
CaseChat Overview and Summary
The case of Tamanna v Zattere involved a dispute over the sale of "off the plan" residential properties. The plaintiffs, Tamanna, had entered into contracts for the purchase of properties with the defendants, Zattere, a property developer. The dispute arose when Zattere sought to rescind the contracts, arguing that the plaintiffs had failed to complete the purchase by the required date. The matter was heard in the Supreme Court of Victoria.
The court was required to determine whether the defendants were entitled to rescind the contracts due to the plaintiffs' failure to complete. Additionally, the court needed to assess the principles of causation in the context of rescission, specifically whether the plaintiffs could be held responsible for the failure to register the plan of subdivision, which led to the rescission. The court also had to determine the appropriate date for assessing damages and the standard of proof for loss of bargain damages in the context of termination for breach.
The court found that the defendants were not entitled to rescind the contracts as they had failed to use reasonable endeavours to register the plan of subdivision by the required date. The court emphasised the principle that a party cannot exercise a right in reliance on an event that results from its own default. Therefore, the rescissions were ineffective. Regarding the date for assessing damages, the court held that the appropriate date was the date of termination of the contracts. The court also found that the plaintiffs were ready, willing and able to complete their obligations under the contracts, thus entitled to loss of bargain damages.
The court ordered the defendants to compensate the plaintiffs for the loss of bargain damages, assessed at the date of termination of the contracts. The defendants were also ordered to pay the plaintiffs' costs of the proceeding. The court's decision provided clarity on the rights and obligations of parties in "off the plan" property sales and the principles of causation and damages in the context of rescission.