Yogesh Enterprises Pty Ltd v Jury & Anor [2011] NSWSC 131

Yogesh Enterprises Pty Ltd v Jury & Anor [2011] NSWSC 131

Condition 33 required the obtaining of an environmental site report satisfactory to NAB and did not involve an approval or a refusal of approval for the purposes of clause 29.7.2. The applicable rescission right arose under clause 29.7.1 only after the 42-day period in clause 29.2 expired on 20 July 2010. Although the Plaintiff's solicitor knew NAB was not satisfied and acted in a way otherwise consistent with completing the contract, including saying the Plaintiff was settling anyway, no right to rescind yet coexisted with the right to affirm before 20 July 2010. The Plaintiff therefore had not made an election between inconsistent rights and validly rescinded on 21 July 2010.

Jurisdiction
Australia
Judgment Date
09 March 2011
Procedural Posture
Equity Division Proceedings by Summons and Cross Summons Concerning Rescission of a Contract for Sale of Land / Principal Judgment
Outcome
Declaration made for the Plaintiff; Defendants' cross summons dismissed; Defendants ordered to pay interest on the deposit and the Plaintiff's costs.
Legal Topics
['rescission' 'election' 'conditional Contract' 'contract for Sale of Land' 'environmental Site Report Condition']
['contract Law' 'equity' 'property Law'] ['rescission' 'election' 'conditional Contract' 'contract for Sale of Land' 'environmental Site Report Condition']

Case Brief

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Procedural Posture

Equity Division Proceedings by Summons and Cross Summons Concerning Rescission of a Contract for Sale of Land / Principal Judgment

Legal Issues

  1. 1 ['Whether condition 33 of the contract was engaged and when the contract could lawfully be rescinded.' 'Whether the relevant rescission right arose under clause 29.7.1 or clause 29.7.2 of the contract.' 'Whether the Plaintiff, by its conduct, irrevocably elected to affirm the contract and thereby lost any right to rescind.']

Ratio Decidendi

Condition 33 required the obtaining of an environmental site report satisfactory to NAB and did not involve an approval or a refusal of approval for the purposes of clause 29.7.2. The applicable rescission right arose under clause 29.7.1 only after the 42-day period in clause 29.2 expired on 20 July 2010. Although the Plaintiff's solicitor knew NAB was not satisfied and acted in a way otherwise consistent with completing the contract, including saying the Plaintiff was settling anyway, no right to rescind yet coexisted with the right to affirm before 20 July 2010. The Plaintiff therefore had not made an election between inconsistent rights and validly rescinded on 21 July 2010.

Court Disposition

Declaration made for the Plaintiff; Defendants' cross summons dismissed; Defendants ordered to pay interest on the deposit and the Plaintiff's costs.

Orders

  • ["Declaration made in accordance with paragraph 1 of the Plaintiff's summons." "Declaration made in accordance with paragraph 2 of the Plaintiff's summons." 'Defendants to pay the Plaintiff an amount of interest on the deposit, being 8.5% per annum of $16.30 per day from 21 July 2010.' "Defendants' cross summons...