Samuel v Daher; Daher v Samuel [2022] NSWSC 421

Samuel v Daher; Daher v Samuel [2022] NSWSC 421

Special Condition 58 purported to modify the statutory requirement that the relevant swimming pool certificate be provided before the contract was signed by deferring provision until settlement and substituting a later right to terminate. By s 52A(4) of the Conveyancing Act 1919 (NSW), that condition was void. Because the required swimming pool certificate, certificate of non-compliance or relevant occupation certificate was not provided at the time of the contract, Mr and Ms Samuel had a right to rescind under s 52A and validly exercised it on 22 February 2021. Mr Daher acted unreasonably in not accepting Mr and Ms Samuel's Calderbank offer, which would have left him in a better position...

Jurisdiction
Australia
Judgment Date
04 April 2022
Procedural Posture
Equity Real Property List; Contract for Sale of Land Rescission and Related Damages Proceedings Heard Together / Principal Judgment After Hearing on Declarations, Return of Deposit, Dismissal of Related Proceedings and Costs
Outcome
Declarations made; order for return of deposit made by consent; proceedings 2021/277376 dismissed by consent; Mr Daher ordered to pay Mr and Ms Samuel's costs on an indemnity basis from 29 March 2021.
Legal Topics
['contract for Sale of Land' 'swimming Pool Compliance Certificate' 'rescission' 'deposit' 'section 52 a Conveyancing Act 1919 (nsw)' 'special Condition Voidness' 'calderbank Offer' 'indemnity Costs']
['land Law' 'conveyancing' 'real Property' 'costs'] ['contract for Sale of Land' 'swimming Pool Compliance Certificate' 'rescission' 'deposit' 'section 52 a Conveyancing Act 1919 (nsw)' 'special Condition Voidness' 'calderbank Offer' 'indemnity Costs']

Case Brief

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Procedural Posture

Equity Real Property List; Contract for Sale of Land Rescission and Related Damages Proceedings Heard Together / Principal Judgment After Hearing on Declarations, Return of Deposit, Dismissal of Related Proceedings and Costs

Legal Issues

  1. 1 ['Whether s 52A(4) of the Conveyancing Act 1919 (NSW) avoided Special Condition 58 insofar as it purported to defer provision of the swimming pool certificate until settlement.' 'Whether Mr and Ms Samuel validly rescinded the contract for sale dated 17 February 2021 because the required swimming pool certificate or occupation certificate was not annexed before the contract was signed.' 'Whether the $5,000 deposit should be returned to Mr and Ms Samuel.' "Whether Mr Daher should pay Mr and Ms Samuel's costs on an indemnity basis after not accepting a Calderbank offer."]

Ratio Decidendi

Special Condition 58 purported to modify the statutory requirement that the relevant swimming pool certificate be provided before the contract was signed by deferring provision until settlement and substituting a later right to terminate. By s 52A(4) of the Conveyancing Act 1919 (NSW), that condition was void. Because the required swimming pool certificate, certificate of non-compliance or relevant occupation certificate was not provided at the time of the contract, Mr and Ms Samuel had a right to rescind under s 52A and validly exercised it on 22 February 2021. Mr Daher acted unreasonably in not accepting Mr and Ms Samuel's Calderbank offer, which would have left him in a better position...

Court Disposition

Declarations made; order for return of deposit made by consent; proceedings 2021/277376 dismissed by consent; Mr Daher ordered to pay Mr and Ms Samuel's costs on an indemnity basis from 29 March 2021.

Orders

  • ['Declare that the Plaintiffs, on 22 February 2021, validly rescinded the Contract For Sale dated 17 February 2021 in respect of the real property situated at [address omitted], Kingsgrove, NSW, 2208 as between the Plaintiffs as purchasers and the First Defendant as vendor.' 'Declare that Special Condition 58 of the...