Wardy v Hardy

[2002] NSWCA 215

Reported Decision: (2003) NSW ConvR 56-034

New South Wales

Court of Appeal

CITATION:	WARDY v HARDY & ANOR [2002] NSWCA 215
FILE NUMBER(S):	CA 40044/02
HEARING DATE(S):	5 June 2002
JUDGMENT DATE:	5 July 2002
PARTIES :	Edmond WARDY v Gavin HARDY & Anor
JUDGMENT OF:	Mason P at 1; Giles JA at 86; Ipp AJA at 87

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	ED 3936/00
LOWER COURT JUDICIAL OFFICER :	Bryson J

COUNSEL:	Appellant: J Graves SC/ I Khan Respondent: S Rares SC/ R Kaye
SOLICITORS:	Appellant: Hunt & Hunt Respondent: Deacons
CATCHWORDS:	CONTRACT - vendor and purchaser - lease granting option to purchase - subdivision consent - court management of specific performance - parties agreeing to private easement over pipes for facilities - public utility requiring new connections - whether vendor did everything reasonable to have subdivision plan registered within time specified in contract for sale - whether vendor's obligation is complied with by showing that non-compliance arises from some failure of an independent contractor - rescission. (ND)
LEGISLATION CITED:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Local Government Act 1919 Sydney Water Act 1994
CASES CITED:	Butts v O'Dwyer (1952) 87 CLR 2 Hardy & Anor v Hardy [2001] NSWSC 1141 Hawes v Cuzeno Pty Ltd (1999) 10 BPR 18,011 Masters v Belpate Pty Ltd [2001] NSWSC 169 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Pejovic v Malinic (1960) 60 SR(NSW) 184 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 254
DECISION:	Appeal dismissed with costs

CA 40044/2022
ED 3936/2000

MASON P
GILES JA
IPP AJA

Friday 5 July 2002

Edmond WARDY v Gavin HARDY & Anor

The appellant owned land in Alexandria, the greater portion of which is occupied by a building subject to a registered lease to the first respondent. The smaller portion is occupied by another building, and both buildings share common connections for water sewerage and drainage. The lease was for a 7 year term commencing in mid-1995, with an option to purchase. Shortly before the expiry of the option, the first respondent purported to exercise the option in favour of the second respondent. The appellant refused to acknowledge or complete the contract for sale and proceedings for specific performance ensued. The respondents gained an order for specific performance subject to the appellant obtaining sub-division consent from the local council, with the Court maintaining supervision and control.

The appellant and second respondent exchanged contracts in April 2001, with a draft unregistered plan annexed to the contract. The plan provided for the creation of traditional private easements inter partes for water supply and for drainage over existing common pipes. Both portions of land had direct access to a road. The contract provided that the vendor “must do everything reasonable to have the plan registered within 6 months after the contract date…” giving the parties power to rescind after the expiration of the 6 month period. In…