Peter David Roy Lewis v Lisa Adele McKinnon [2011] NSWSC 338

Procedural Posture

Application for Interlocutory Injunction in Proceedings Concerning Rescission for Alleged Misrepresentation in a Sale of Land / Interlocutory Application

Legal Issues

1. 1 ['Whether the purchasers were entitled to interlocutory relief restraining the vendors from exercising rights arising out of a notice to complete served on 18 April 2011.' 'Whether there was a serious question to be tried that the vendors, through their agents, made misrepresentations or engaged in misleading or deceptive conduct about harbour views from the land.' 'Whether there was a serious question to be tried that the purchasers were entitled to rescind the contract at law or in equity or obtain statutory relief rescinding the contract.' 'Whether the balance of convenience favoured restraining the vendors after the purchasers elected to rescind the contract.']

Ratio Decidendi

Although there was a serious question to be tried about whether the brochure conveyed a false or misleading impression concerning water views, the balance of convenience did not justify interlocutory relief. The purchasers had elected to rescind the contract and could not both maintain that the contract was not on foot and require the vendors to act as if it remained on foot by restraining them from exercising rights arising from that election.

Court Disposition

Plaintiffs' application for interlocutory relief dismissed with costs

Orders

• ["The plaintiffs' application for interlocutory relief should be dismissed with costs."]