Walker v Chanrich Properties Pty Ltd - [2003] NSWSC 1064

CITATION: Walker v Chanrich Properties Pty Ltd [2003] NSWSC 1064

HEARING DATE(S): 10 and 11 November 2003

JUDGMENT DATE:
19 November 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Plaintiffs' suit dismissed with costs.

CATCHWORDS: CONTRACT [135]- Rescission- Contract to buy off the plan- Special conditions- Vendors to "take all reasonable steps to procure approval for the registration of the Plan, Instruments or Community Management Statement"- What is "reasonable"- What would a reasonable developer do?- Both parties had right to rescind under special condition 30- Vendors exercised the right of rescission- Whether rescission justified- Plaintiffs seeking specific performance of contract. CONVEYANCING [2]- Contract subject to registration of plan within certain period- Condition not fulfilled- Whether vendors could rescind.

LEGISLATION CITED: Sydney Water Act 1994, s 73

CASES CITED: Hawes v Cuzeno Pty Ltd (1999) 10 BPR 18,011
Hunyor v Tilelli (1997) 8 BPR 15,629
Mitchell v Pattern Holdings Pty Ltd (2002) 11 BPR 20,241
Pulmor Pty Ltd v Handley (1996) 41 NSWLR 30
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Wardy v Hardy (2002) 11 BPR 20,227

PARTIES :
Andrew Peter Walker and Aurora Walker (P)
Chanrich Properties Pty Ltd and Hi-Return Investments Pty Ltd (D)

FILE NUMBER(S): SC 1908/03

COUNSEL: J B Whittle SC and Y Holt (P)
J E Richards (D)

SOLICITORS: C G Taylor & Son (P)
Storey & Gough (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 19 November 2003

1908/03 - WALKER v CHANRICH PROPERTIES PTY LTD

JUDGMENT

1 HIS HONOUR: This is a purchasers' suit for specific performance.

2 The proceedings were heard by me on 10 and 11 November 2003. Mr J B Whittle SC and Miss Y Holt appeared for the plaintiffs and Miss J E Richards appeared for the defendants. The argument finished on 11 November, but there was then insufficient time to give judgment.

3 The defendants were developers of an estate at Wahroonga. On 22 June 2001 the parties entered into a contract in the 2000 edition of the standard form for the purchase by the plaintiffs and sale by the defendants of Lot 31 in the estate for $650,000. The standard deposit of $65,000 was paid.

4 Completion under special condition 34(1) was to be within 14 days from the date of notification of registration to the purchasers' solicitors that the relevant plan had been registered with the Land and Property Information Office.

5 Special condition 30(6) is as follows:

"(6) The vendor shall take all reasonable steps to procure approval for the registration of the Plan, Instruments or Community Management Statement as referred to in sub-clause (2) of this condition as soon as practicable after the date hereof. If the Plan, Instruments or Community Management Statement are not so approved and registered on or before the date which is nineteen (19) calendar months after the date hereof, either party may prior to registration of the Plan, Instruments and Community Management Statement rescind this…

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 Walker v Chanrich Properties Pty Ltd

Details

AGLC: Walker v Chanrich Properties Pty Ltd [2003] NSWSC 1064
Case: [2003] NSWSC 1064
Decision Date: 19 November 2003

CaseChat Overview and Summary

The dispute in Walker v Chanrich Properties Pty Ltd involved the plaintiffs, who had entered into a contract to purchase a property from the defendants, Chanrich Properties Pty Ltd. The disagreement arose when the plaintiffs sought specific performance of the contract after the vendors exercised their right to rescind due to the failure to register the plan within the stipulated period. The matter was brought before the court to determine the validity of the rescission and the implications for the plaintiffs' request for specific performance.

The central legal issue before the court was the interpretation of the term "reasonable" in the context of the vendors' obligation to procure the registration of the plan. Specifically, the court had to determine what actions a reasonable developer would undertake in such circumstances and whether the vendors' exercise of their right to rescind was justified. Another key issue was whether the plaintiffs had the right to seek specific performance of the contract despite the vendors' rescission.

The court examined the terms of the special conditions in the contract, which provided both parties with the right to rescind if the plan was not registered within the specified timeframe. The court held that the vendors were entitled to rescind the contract as the condition was not met. The court found that the vendors had acted reasonably in exercising their right to rescind, as they had made efforts to obtain the necessary approvals and had taken steps in line with what a reasonable developer would do. The court further determined that the plaintiffs' request for specific performance was inappropriate given the vendors' valid exercise of their right to rescind.

The final orders of the court upheld the vendors' right to rescind the contract and dismissed the plaintiffs' claim for specific performance. The court ruled that the vendors had acted within their rights under the contract by rescinding, and the plaintiffs were not entitled to compel the vendors to complete the sale.

Orders