Tamanna v Zattere; Thakorlal v Zattere; Rabac Pty Ltd v Zattere [2017] NSWSC 1388

Tamanna v Zattere; Thakorlal v Zattere; Rabac Pty Ltd v Zattere [2017] NSWSC 1388

Vendors breached their reasonable/best endeavours obligations by failing to pursue available remedies to obtain drainage rights essential for registration (notably failing to seek s 88K easements promptly and relying instead on uncertain negotiations); this breach materially contributed to non-registration by the Sunset Date. Accordingly, vendors were not entitled to rescind and their purported rescissions were invalid and constituted repudiation. Purchasers, being ready, willing and able to perform, were entitled to terminate the contracts and recover loss of bargain damages calculated as the difference between the lot values as at the hearing date and contract prices. Claim for ACL...

Jurisdiction
Australia
Judgment Date
12 October 2017
Procedural Posture
Damages Claim Following Termination/repudiation of Sale Contracts / Final Judgment
Outcome
Judgment entered for plaintiffs for loss of bargain damages against vendors; ACL claim dismissed.
Legal Topics
['loss of Bargain Damages' 'repudiation' 'rescission' "'off the Plan' Sale" 'best Endeavours Obligations' 'reasonable Endeavours Obligations' 'causation' 'damages Assessment' 'readiness, Willingness and Ability' 'misleading or Deceptive Conduct']
['land Law' 'contract Law' 'equity'] ['loss of Bargain Damages' 'repudiation' 'rescission' "'off the Plan' Sale" 'best Endeavours Obligations' 'reasonable Endeavours Obligations' 'causation' 'damages Assessment' 'readiness, Willingness and Ability' 'misleading or Deceptive Conduct']

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

Damages Claim Following Termination/repudiation of Sale Contracts / Final Judgment

Legal Issues

  1. 1 ['Were vendors entitled to rescind contracts for failure to register subdivision plan by Sunset Date?' 'Did vendors breach best/reasonable endeavours obligations?' 'Did such breaches materially contribute to non-registration and disentitle vendors from rescinding?' 'Were purchasers entitled to termination for repudiation and loss of bargain damages?' 'What is the proper date for assessment of damages?' 'Did evidence show readiness, willingness and ability of purchasers?' 'Was there actionable misleading or deceptive conduct under ACL s 18 and 236?']

Ratio Decidendi

Vendors breached their reasonable/best endeavours obligations by failing to pursue available remedies to obtain drainage rights essential for registration (notably failing to seek s 88K easements promptly and relying instead on uncertain negotiations); this breach materially contributed to non-registration by the Sunset Date. Accordingly, vendors were not entitled to rescind and their purported rescissions were invalid and constituted repudiation. Purchasers, being ready, willing and able to perform, were entitled to terminate the contracts and recover loss of bargain damages calculated as the difference between the lot values as at the hearing date and contract prices. Claim for ACL...

Court Disposition

Judgment entered for plaintiffs for loss of bargain damages against vendors; ACL claim dismissed.

Orders

  • ['Damages awarded in each case as difference between value of relevant lot as at May 2016 and contract price' 'Interest to be paid pursuant to s 100 Civil Procedure Act 2005 (NSW)' 'Costs to follow the event' 'Parties to bring in Short Minutes of Order within 7 days; if no agreement, directions for further...