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Wilde v Anstee

Wilde v Anstee

Case [1999] NSWSC 612 23 June 1999

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Reported Decision: (2000) NSW ConvR 55-951

New South Wales

Supreme Court

CITATION: Wilde v Anstee [1999] NSWSC 612

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 5095/97 and 4088/97

HEARING DATE(S): 19 October 1998

JUDGMENT DATE:
23 June 1999

PARTIES :

Gregory Alfred Wilde & Anor (P)
v
Matthew Thomas Anstee & Anor (D)

JUDGMENT OF: Austin J

COUNSEL : J Smith (P)
S Burchett (D)

SOLICITORS: Helliars City (P)
Brock Partners (D)

CATCHWORDS: Real property - conveyancing - contract for sale of land - notice to complete - purchaser's failure to complete on agreed date - whether purchaser entitled to reasonable time for completion after registration of plan - whether notice to complete valid where property is charged with land tax in unassessed amount - whether notice to complete which specifies alternatives of rescission and specific performance is effective - whether notice of rescission must specify breach

CASES CITED: Balog v Crestani (1975) 132 CLR 289
Castle Hill Tyres Pty Ltd v Luxspice Pty Ltd (1996) NSW ConvR para 55-771
Ciavarella v Balmer (1983) 57 ALJR 632
Dabbs v Seaman (1925) 36 CLR 538
Dainford Ltd v Yulora Pty Ltd (1984) NSW ConvR para 55-184
Gostown Pty Ltd v Prior (1970) 92 WN (NSW) 882
Halkidis v Bugeia [1974] 1 NSWLR 423
Jillinda Pty Ltd v McCourt (1983) NSW ConvR para 55-145
Jones v Dunkel (1959) 101 CLR 298
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Louinder v Leis (1982) 149 CLR 509
Lynch v Olympic Bowling Centres Pty Ltd [1969] 1 NSWR 351
Maxsujur Pty Ltd v Asimus [1980] 2 NSWLR 96
McNally v Waitzer [1981] 1 NSWLR 294
Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286
O’Brien v Dawson (1941) 41 SR(NSW) 295
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Re Barr’s Contract [1956] Ch 551
Taylor v Raglan Developments Pty Ltd [1981] 2 NSWLR 117

DECISION: Judgment for plaintiffs

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

WEDNESDAY 23 JUNE 1999

5095/97 & 4088/97 - GREGORY ALFRED WILDE & ANOR V MATTHEW THOMAS ANSTEE & ANOR

JUDGMENT

1 HIS HONOUR: This case involves a dispute between the vendor and purchaser of a residential waterfront property situated at 338 Victoria Place, Drummoyne (‘the Property’). As I shall explain, part of the dispute relates to whether the Property included a strip of reclaimed land at the mean high water mark of the Parramatta River. My reference to the Property is not intended to pre-judge that issue. 2 The plaintiffs, Mr and Mrs Wilde, were the registered proprietors of the Property at all material times until 2 May 1997. The second defendant, Burridge Realty Pty Ltd, was the plaintiffs’ agent for the sale of the Property. On 19 September 1996 an auction of the Property took place at which the first defendant, Mr Anstee, was the successful bidder. Later that day the plaintiffs and the first defendant entered into a contract for the sale of…

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 Wilde v Anstee

Details

AGLC: Wilde v Anstee [1999] NSWSC 612
Case: [1999] NSWSC 612
Decision Date: 23 June 1999

CaseChat Overview and Summary

The dispute in Wilde v Anstee arose between the vendor, Wilde, and the purchaser, Anstee, concerning a contract for the sale of land. The vendor sought to enforce a notice to complete the purchase, which the purchaser failed to do on the agreed date. The primary legal issues before the court were whether the purchaser was entitled to a reasonable time for completion after the registration of the plan of subdivision, whether a notice to complete was valid when the property was charged with land tax in an unassessed amount, whether a notice to complete specifying alternatives of rescission and specific performance was effective, and whether a notice of rescission had to specify the breach.

The court examined the contract and relevant statutes, including the Property Law Act. It found that while the purchaser was generally entitled to a reasonable time for completion, this did not extend to an indefinite period after the registration of the plan of subdivision. The court also held that a notice to complete was not rendered invalid by the property being charged with land tax in an unassessed amount. Furthermore, the court determined that a notice to complete specifying rescission and specific performance as alternatives was effective, even if the notice of rescission did not explicitly state the breach. The court held that the requirement for specificity in a notice of rescission was not absolute and could be satisfied if the breach was apparent from the context.

The court concluded that the purchaser was not entitled to a reasonable time for completion beyond the registration of the plan of subdivision and that the notice to complete was valid. As a result, the purchaser was liable for rescission and specific performance. The court ordered that the contract be rescinded and that the purchaser complete the purchase within a specified period. If the purchaser failed to do so, the court directed that specific performance be enforced.

Orders