Macdonald v Kavshan Pty Ltd; Villarica v Kavshan Pty Ltd [2016] NSWSC 731

Macdonald v Kavshan Pty Ltd; Villarica v Kavshan Pty Ltd [2016] NSWSC 731

Special condition 53.4 conferred on either party a right to rescind if the Plan was not registered by the Registration Date, exercisable by notice within 14 days of that date, and that right survived registration of the Plan during that 14-day period. Clause 29.9 prevented rescission under cl 29.8 after registration, but the Vendor rescinded under special condition 53.4; alternatively, if the provisions were inconsistent, the special condition prevailed over the standard condition. There was no basis to read the words "and remains unregistered" into special condition 53.4. The Vendor's rescission was therefore effective and the Purchasers were not entitled to relief.

Jurisdiction
Australia
Judgment Date
01 June 2016
Procedural Posture
Contract Dispute Concerning Contracts for the Sale of Land / Principal Judgment; Equity Expedition List
Outcome
Proceedings dismissed with costs.
Legal Topics
['construction of Contract for Sale of Land' 'rescission' 'specific Performance' 'standard Conditions and Special Conditions' 'implied Words or Terms' 'offers of Compromise' 'costs']
['contract Law' 'real Property' 'civil Procedure'] ['construction of Contract for Sale of Land' 'rescission' 'specific Performance' 'standard Conditions and Special Conditions' 'implied Words or Terms' 'offers of Compromise' 'costs']

Case Brief

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Procedural Posture

Contract Dispute Concerning Contracts for the Sale of Land / Principal Judgment; Equity Expedition List

Legal Issues

  1. 1 ['Whether the Vendor was entitled to rescind the contracts under special condition 53.4 after the Plan was registered but within 14 days of the Registration Date.' 'Whether cl 29.9 of the standard conditions prevented rescission under special condition 53.4 once the Plan had been registered.' 'Whether any tension between cl 29 and special condition 53.4 should be resolved by giving priority to the special condition.' 'Whether the words "and remains unregistered" should be read into special condition 53.4.' 'Whether the Purchasers were entitled to specific performance, damages or any other remedy.' 'Whether the Vendor was entitled to indemnity costs after its offer of compromise.']

Ratio Decidendi

Special condition 53.4 conferred on either party a right to rescind if the Plan was not registered by the Registration Date, exercisable by notice within 14 days of that date, and that right survived registration of the Plan during that 14-day period. Clause 29.9 prevented rescission under cl 29.8 after registration, but the Vendor rescinded under special condition 53.4; alternatively, if the provisions were inconsistent, the special condition prevailed over the standard condition. There was no basis to read the words "and remains unregistered" into special condition 53.4. The Vendor's rescission was therefore effective and the Purchasers were not entitled to relief.

Court Disposition

Proceedings dismissed with costs.

Orders

  • ['Each proceeding is dismissed.' "The plaintiffs are to pay the defendant's costs in each proceeding on the ordinary basis to 22 February 2016 and on an indemnity basis thereafter." 'All parties are released from undertakings given to the Court during the course of these proceedings.' 'Any injunctions made in the...