Parry v Navaroo Constructions Pty Limited [2013] NSWSC 249

Parry v Navaroo Constructions Pty Limited [2013] NSWSC 249

Clauses 28 and 42 were capable of operating together and did different work: cl 28 gave the purchaser an unqualified right to rescind after six months if the plan remained unregistered, while cl 42 gave either party a further discretionary right to rescind after 18 months if the plan remained unregistered. Because there was no inconsistency, the principle that a special condition prevails over a standard clause did not apply, and the Magistrate erred in law by holding otherwise.

Jurisdiction
Australia
Judgment Date
27 March 2013
Procedural Posture
Appeal From Local Court on a Question of Law Concerning Construction of a Contract for Sale of Land / Supreme Court Appeal Pursuant to Ss 39(1) and 41 of the Local Court Act 2007
Outcome
Appeal upheld; Local Court decision set aside; judgment entered for the plaintiffs/cross respondents.
Legal Topics
['construction of Contract for Sale of Land' 'unregistered Subdivision Plan' 'rescission' 'special Conditions and Standard Form Clauses' 'appeal From Local Court']
['contract Law' 'property Law' 'civil Procedure'] ['construction of Contract for Sale of Land' 'unregistered Subdivision Plan' 'rescission' 'special Conditions and Standard Form Clauses' 'appeal From Local Court']

Case Brief

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Procedural Posture

Appeal From Local Court on a Question of Law Concerning Construction of a Contract for Sale of Land / Supreme Court Appeal Pursuant to Ss 39(1) and 41 of the Local Court Act 2007

Legal Issues

  1. 1 ['Whether cl 42, a special condition headed "Sunset date", prevailed over cl 28 of the standard form contract for sale of land.' 'Whether cl 28.3 and cl 42.1 were inconsistent or capable of operating together.' 'Whether the purchasers were entitled to rescind when the subdivision plan had not been registered within six months of the contract date.']

Ratio Decidendi

Clauses 28 and 42 were capable of operating together and did different work: cl 28 gave the purchaser an unqualified right to rescind after six months if the plan remained unregistered, while cl 42 gave either party a further discretionary right to rescind after 18 months if the plan remained unregistered. Because there was no inconsistency, the principle that a special condition prevails over a standard clause did not apply, and the Magistrate erred in law by holding otherwise.

Court Disposition

Appeal upheld; Local Court decision set aside; judgment entered for the plaintiffs/cross respondents.

Orders

  • ['The appeal is upheld.' 'The decision of his Honour Magistrate Bone dated 2 October 2012 is set aside.' 'Judgment is entered in favour of the plaintiffs/cross respondents. The defendant/cross claimant is to pay the deposit sum of $21,200 to the plaintiffs/cross respondents with costs and interest.' "The defendant...