Smogurzewski v AIT Investment Group Pty Ltd [2020] NSWSC 490

Smogurzewski v AIT Investment Group Pty Ltd [2020] NSWSC 490

The plaintiff was not entitled to rescind. On completion he would become registered proprietor of Lot 107 and obtain exclusive rights to possess and enjoy the lot, including the carspace; no other person, including a disabled parking permit holder, would have a right to park there. Any practical risk of unauthorised use from the International Symbol of Access was small and could be eliminated by removing or concealing the symbol, which the owner could lawfully do. The symbol therefore did not create a substantial discrepancy between what was contracted for and what was to be conveyed. The defendant did not contravene ss 18 or 30 of the Australian Consumer Law because it was not shown...

Jurisdiction
Australia
Judgment Date
05 May 2020
Procedural Posture
Equity Proceedings Concerning an Off the Plan Contract for Sale of a Strata Home Unit and Carspace / Principal Judgment After Hearing on the Plaintiff's Claims for a Declaration of Valid Rescission, Australian Consumer Law Relief, and Return of Deposit
Outcome
Plaintiff not entitled to rescind contract; contract remains on foot; no order for return of deposit; proceedings dismissed with costs.
Legal Topics
['off the Plan Contract for Sale' 'rescission Under Flight V Booth' 'misdescription of Land' 'adaptable Unit' 'disabled Access Carspace Marking' 'misleading or Deceptive Conduct' 'return of Deposit Under Conveyancing Act 1919 (nsw), S 55(2 A)']
['land Law' 'conveyancing' 'equity' 'australian Consumer Law' 'strata Law'] ['off the Plan Contract for Sale' 'rescission Under Flight V Booth' 'misdescription of Land' 'adaptable Unit' 'disabled Access Carspace Marking' 'misleading or Deceptive Conduct' 'return of Deposit Under Conveyancing Act 1919 (nsw), S 55(2 A)']

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Procedural Posture

Equity Proceedings Concerning an Off the Plan Contract for Sale of a Strata Home Unit and Carspace / Principal Judgment After Hearing on the Plaintiff's Claims for a Declaration of Valid Rescission, Australian Consumer Law Relief, and Return of Deposit

Legal Issues

  1. 1 ['Whether the plaintiff validly rescinded the contract on 22 March 2019 under the rule in Flight v Booth because the carspace was marked with the International Symbol of Access.' 'Whether the presence of the International Symbol of Access meant the plaintiff would not obtain exclusive possession and use of the carspace or created a material and substantial discrepancy from the contract.' 'Whether Special Conditions 52 and 58.2 affected or excluded any asserted right of rescission.' 'Whether the defendant contravened ss 18 or 30 of the Australian Consumer Law by representations or silence concerning the carspace and the unit being an adaptable unit.' 'Whether the Court should order return of the deposit under s 55(2A) of the Conveyancing Act 1919 (NSW).']

Ratio Decidendi

The plaintiff was not entitled to rescind. On completion he would become registered proprietor of Lot 107 and obtain exclusive rights to possess and enjoy the lot, including the carspace; no other person, including a disabled parking permit holder, would have a right to park there. Any practical risk of unauthorised use from the International Symbol of Access was small and could be eliminated by removing or concealing the symbol, which the owner could lawfully do. The symbol therefore did not create a substantial discrepancy between what was contracted for and what was to be conveyed. The defendant did not contravene ss 18 or 30 of the Australian Consumer Law because it was not shown...

Court Disposition

Plaintiff not entitled to rescind contract; contract remains on foot; no order for return of deposit; proceedings dismissed with costs.

Orders

  • ['The proceedings are dismissed.' "The plaintiff is to pay the defendant's costs of the proceedings."]