Wang v Kaymet Corporation Pty Ltd

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.