Berrell v Combined Pastoral Pty Limited [2015] NSWSC 1334

Berrell v Combined Pastoral Pty Limited [2015] NSWSC 1334

The plaintiffs validly terminated the contract because the first defendant failed to complete when time was of the essence and the plaintiffs were ready, willing and able to perform. The pool, partially filled with visible accumulated waste, formed part of the property sold in its physical condition and state of repair at auction; the waste was consistent with the nature and character of the dilapidated property. Alternatively, it did not substantially prevent or interfere with enjoyment of the land, and the first defendant waived any objection by agreeing to a $4,400.00 abatement. The cross claim for specific performance failed and the caveat could not be sustained.

Jurisdiction
Australia
Judgment Date
11 September 2015
Procedural Posture
Vendor and Purchaser Suit Commenced by Summons, With Cross Summons for Specific Performance / Final Hearing; Principal Judgment
Outcome
Contract validly terminated by the plaintiffs; deposit forfeited to the plaintiffs; caveat to be withdrawn; first defendant's cross summons for specific performance dismissed.
Legal Topics
['contract for Sale of Land' 'termination of Contract' 'vacant Possession' 'forfeiture of Deposit' 'specific Performance' 'caveat Withdrawal']
['conveyancing' 'contract Law' 'equity'] ['contract for Sale of Land' 'termination of Contract' 'vacant Possession' 'forfeiture of Deposit' 'specific Performance' 'caveat Withdrawal']

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Procedural Posture

Vendor and Purchaser Suit Commenced by Summons, With Cross Summons for Specific Performance / Final Hearing; Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiffs were ready, willing and able to give vacant possession on completion despite building waste in a disused swimming pool.' 'Whether the building waste formed part of the property sold in its physical condition and state of repair, or substantially interfered with vacant possession.' 'Whether the first defendant waived any objection to the waste by agreeing to an abatement of the purchase price.' 'Whether the plaintiffs validly terminated the contract after the first defendant failed to complete when time was of the essence.' 'Whether the first defendant was entitled to specific performance or to maintain its caveat.']

Ratio Decidendi

The plaintiffs validly terminated the contract because the first defendant failed to complete when time was of the essence and the plaintiffs were ready, willing and able to perform. The pool, partially filled with visible accumulated waste, formed part of the property sold in its physical condition and state of repair at auction; the waste was consistent with the nature and character of the dilapidated property. Alternatively, it did not substantially prevent or interfere with enjoyment of the land, and the first defendant waived any objection by agreeing to a $4,400.00 abatement. The cross claim for specific performance failed and the caveat could not be sustained.

Court Disposition

Contract validly terminated by the plaintiffs; deposit forfeited to the plaintiffs; caveat to be withdrawn; first defendant's cross summons for specific performance dismissed.

Orders

  • ['DECLARE that the contract dated 27 September 2014 for the sale of the land contained in folio identifier 17/30246 between the plaintiffs, as vendors, and the first defendant, as purchaser, has been validly terminated by the plaintiffs.' 'DECLARE that the deposit of $63,300.00 paid by the first defendant to the...