Immer (No_145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27

Immer (No_145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27

Immer's forwarding of settlement documents on 26 June 1989, including a draft deed reciting that the Council had approved the transfer, was done on the basis that approval had been given and completion was possible. Because the Council had not in fact approved the transfer, the Uniting Church was not then in a position to complete, and Immer was not confronted with a need to choose between affirming the deed regardless of approval and abandoning its continuing right under cl. 7. The conduct was not a clear and unequivocal election to affirm the contract, so Immer's notice of rescission was effective.

Jurisdiction
Australia
Procedural Posture
Appeal Concerning Contractual Rescission and Election to Affirm an Agreement for Sale of Transferable Floor Space / High Court of Australia Appeal From the Court of Appeal of New South Wales
Outcome
Appeal allowed with costs.
Legal Topics
['election' 'rescission or Termination of Contract' 'specific Performance' 'transferable Floor Space' 'contractual Conditions']
['contract Law' 'property Law'] ['election' 'rescission or Termination of Contract' 'specific Performance' 'transferable Floor Space' 'contractual Conditions']

Case Brief

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Procedural Posture

Appeal Concerning Contractual Rescission and Election to Affirm an Agreement for Sale of Transferable Floor Space / High Court of Australia Appeal From the Court of Appeal of New South Wales

Legal Issues

  1. 1 ['Whether Immer abandoned its contractual right to rescind under cl. 7 of the deed and elected to affirm the agreement.' 'Whether the letter of 26 June 1989 and related conduct constituted a clear and unequivocal election not to exercise the right of rescission.' 'Whether any election could be avoided by reason of mistake.']

Ratio Decidendi

Immer's forwarding of settlement documents on 26 June 1989, including a draft deed reciting that the Council had approved the transfer, was done on the basis that approval had been given and completion was possible. Because the Council had not in fact approved the transfer, the Uniting Church was not then in a position to complete, and Immer was not confronted with a need to choose between affirming the deed regardless of approval and abandoning its continuing right under cl. 7. The conduct was not a clear and unequivocal election to affirm the contract, so Immer's notice of rescission was effective.

Court Disposition

Appeal allowed with costs.

Orders

  • ['Set aside the order of the Court of Appeal of New South Wales.' 'In lieu thereof order that the appeal to that Court be dismissed with costs.' 'Restore the judgment and orders of Young J.']