Turner v Labafox International Pty Ltd

HIGH COURT OF AUSTRALIA

McTiernan A.C.J., Stephen and Mason JJ.

TURNER v. LABAFOX INTERNATIONAL PTY. LTD.

(1974) 131 CLR 660

25 October 1974

Contract—Vendor and Purchaser

Contract—Rescission—Right to rescind conferred by contract—Election—Affirmation of contract—Exercise of right to rescind precluded. Vendor and Purchaser—Contract of sale—Term conferring right to rescind if it were established that at date of contract property affected by planning scheme otherwise than as stated—Statement that property affected as shown in annexed certificate—No certificate annexed—Right to rescind—Election—Affirmation of contract—Exercise of right to rescind precluded.

Decisions

Oct. 25.
The following written judgments were delivered:-
MCTIERNAN A.C.J. I would dismiss this appeal and would do so for the reasons prepared by my brother Stephen. (at p662)

STEPHEN J. This appeal from the Equity Division of the Supreme Court of New South Wales, Holland J., is concerned, as were the three appeals in which A.S.L. Developments Ltd. was respondent and in which judgment has just been delivered, with the consequences of a failure to annex to a contract of sale a certificate disclosing how the subject land may be affected by an applicable town planning provisions. I adopt the statement of facts appearing in the reasons for judgment of my brother Mason. (at p662)

2. The standard form of contract in the present appeal is the 1972 edition but for present purposes the differences between cl. 17 of that form and cl. 16 of the 1965 edition, dealth with in Wolczyk v. Barr (1970) 92 WN (NSW) 518 , are not material. It was not argued by the respondent on this appeal that Wolczyk v. Barr was otherwise than correctly decided but instead it was sought to distinguish it. Holland J. in the course of his judgment has said: "I am satisfied that at all material times the plaintiff was fully aware of the facts which were later relied upon to ground the notice of rescission and that at no time were they a deterrent to him in the purchase of the subject properties or a reason in his mind for not going through with the purchase and completing the contract", and it was contended that the opening words of cl. 17, "Should it be established that . . ." were inapplicable to the case of a purchaser who had long been familiar with the town planning status of the subject land. I have, in what I shall for convenience refer to as the A.S.L. Developments appeal (1974) 131 CLR 660 at p 634 which concerned the 1965 edition of the standard form of contract, already dealt with a very similar contention and for the reasons there stated must reject this submission, only adding that the changes in language made in the 1972 edition appear to me to provide additional reasons for rejecting the view contended for. (at p663)

3. Holland J., while holding that cl. 17 conferred a right of rescission upon the purchaser, concluded that the purchaser's subsequent conduct disentitled him from taking advantage of it; his conduct following the…