Yapp v Pollak [2019] NSWSC 449

Yapp v Pollak [2019] NSWSC 449

Special Condition 49, read in the context of the contract as a whole and its immediate surrounding text, required the vendors to replace the lower staircase in accordance with the development approval, warranted satisfaction of development consent conditions in respect of that work, and required an occupation certificate in respect of that work. It did not require completion of all works permitted by the development approval or provision of a final occupation certificate. Because the plaintiffs replaced the lower staircase and provided an interim occupation certificate for that work, they complied with Special Condition 49 and were entitled to specific performance; the cross claim failed.

Jurisdiction
Australia
Judgment Date
24 April 2019
Procedural Posture
Claim by Vendor for Specific Performance of Contract for Sale of Land; Cross Claim Seeking Performance of Special Condition 49 / Principal Judgment After Hearing
Outcome
Orders made for specific performance of contract for sale of land; defendant's cross claim dismissed; defendant to pay plaintiffs' costs.
Legal Topics
['contract for Sale of Land' 'specific Performance' 'construction of Contractual Special Condition' 'development Approval' 'occupation Certificate']
['land Law' 'contract Law' 'equity'] ['contract for Sale of Land' 'specific Performance' 'construction of Contractual Special Condition' 'development Approval' 'occupation Certificate']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Claim by Vendor for Specific Performance of Contract for Sale of Land; Cross Claim Seeking Performance of Special Condition 49 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Special Condition 49 required the vendors to complete all works the subject of Development Approval D/2017/1171 or only to replace the lower staircase in accordance with that approval.' 'Whether the vendors satisfied the warranty that all Development Consent Conditions would be satisfied on or before completion.' 'Whether the interim occupation certificate provided by the vendors satisfied Special Condition 49.' "Whether the vendors were entitled to specific performance and whether the defendant's cross claim should be dismissed."]

Ratio Decidendi

Special Condition 49, read in the context of the contract as a whole and its immediate surrounding text, required the vendors to replace the lower staircase in accordance with the development approval, warranted satisfaction of development consent conditions in respect of that work, and required an occupation certificate in respect of that work. It did not require completion of all works permitted by the development approval or provision of a final occupation certificate. Because the plaintiffs replaced the lower staircase and provided an interim occupation certificate for that work, they complied with Special Condition 49 and were entitled to specific performance; the cross claim failed.

Court Disposition

Orders made for specific performance of contract for sale of land; defendant's cross claim dismissed; defendant to pay plaintiffs' costs.

Orders

  • ['Specific performance of the contract for sale of land ordered.' "Defendant's cross claim dismissed." "Defendant to pay the plaintiffs' costs of the proceedings."]