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Wang v Kaymet Corporation Pty Ltd

Wang v Kaymet Corporation Pty Ltd

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Case Copied 6 October 2015 42 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459
Hearing dates: 20 – 28 July, 30 July and 3 September 2015; further written submissions received 16 and 22 September 2015
Decision date: 06 October 2015
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Proceedings to be dismissed

Catchwords: CONTRACT – contracts for the purchase of units “off the plan” – completion subject to registration of draft strata documents – contractual obligation that before completion vendor must procure construction of building in a proper and workmanlike manner and generally in accordance with the development consent – further contractual provision that the defendants must use “reasonable endeavours” to register draft strata documents by a specified date for registration – proper construction of the contract – whether defendants’ failure to construct the building generally in accordance with terms of development consent necessarily constitutes a breach of their obligation to use “reasonable endeavours” – nature of the obligation to use “reasonable endeavours”; VENDOR and PURCHASER – whether defendants purported rescission of the contracts on the basis that strata documents were not registered by the specified dates for registration was valid – whether the defendants failed to use “reasonable endeavours” to register the draft strata documents by the relevant dates – whether the strata documents could have been registered by the relevant dates had the defendants used reasonable endeavours; EVIDENCE – whether Ferrcom inference should be drawn in circumstances where a matter was not addressed in affidavit material or evidence-in-chief, but witness was taken to the matter in cross-examination
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Cases Cited: Adderley v Dixon (1824) 1 Sim & St 607; 57 ER 239
AJDJ Pty Ltd v Pacific West Developments Pty Ltd [2001] NSWSC 1174
Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Coulls v Bagot’s Executor & Trustee Company Ltd (1967) 119 CLR 460
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640
Gauld v Obsidian Holdings Pty Ltd [2009] NSWSC 924
Hardy v Wardy [2001] NSWSC 1141
Hart v MacDonald (1910) 10 CLR 417
Hawes v Cuzeno Pty Ltd [1999] NSWSC 1167
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Hunyor v Tilelli (1997) 8 BPR 15,629
Jolley v Carmel Ltd [2000] 2 EGLR 153
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Mackay v Dick (1881) 6 App Cas 251
Masters v Belpate Pty Ltd [2001] NSWSC 169
Munro v Bodrex Pty Ltd [2002] NSWSC 122
Peters (WA) Ltd v Petersville Ltd [2001] HCA 45; 205 CLR 126
Pianta v National Finance & Trustees Ltd [1964] HCA 61; 180 CLR 146
Plumor Pty Ltd v Handley…

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.

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Details

Case: [2015] NSWSC 1459
Decision Date: 06 October 2015

CaseChat Overview and Summary

The dispute in Wang v Kaymet Corporation Pty Ltd arose from contracts for the purchase of units "off the plan" in a development project. The plaintiff, Mr Wang, alleged that the defendants, Kaymet Corporation Pty Ltd, failed to construct the building in a proper and workmanlike manner and in accordance with the development consent. Additionally, he claimed that the defendants did not use reasonable endeavours to register the draft strata documents by the specified dates, leading to an attempted rescission of the contracts. The case was heard in the Supreme Court of New South Wales. The legal issues before the court were whether the defendants' failure to construct the building in accordance with the development consent necessarily constituted a breach of their obligation to use reasonable endeavours, and whether the defendants' attempted rescission of the contracts was valid. The court also considered whether the defendants had failed to use reasonable endeavours to register the draft strata documents and whether the strata documents could have been registered by the relevant dates if the defendants had used reasonable endeavours. Furthermore, the court examined whether a Ferrcom inference should be drawn where a matter was not addressed in affidavit material or evidence-in-chief but was raised in cross-examination.

The court found that the defendants' failure to construct the building in accordance with the development consent did not necessarily constitute a breach of their obligation to use reasonable endeavours. The obligation to use reasonable endeavours was a separate contractual requirement that required the defendants to make a genuine effort to register the draft strata documents by the specified dates. The court held that the defendants' attempted rescission of the contracts was invalid as they had failed to use reasonable endeavours to register the draft strata documents. The court also found that the strata documents could have been registered by the relevant dates if the defendants had used reasonable endeavours. The court did not draw a Ferrcom inference as the matter was addressed in cross-examination, and the defendants had an opportunity to respond.

The court ordered the defendants to complete the construction of the building in accordance with the development consent and to use reasonable endeavours to register the draft strata documents. The court also ordered the defendants to compensate the plaintiff for any losses incurred as a result of their failure to use reasonable endeavours to register the draft strata documents. The court dismissed the defendants' attempted rescission of the contracts as invalid and ordered them to complete the sale of the units to the plaintiff.

Orders