Wu & Anor v Statewide Developments Pty Ltd [2010] NSWSC 1016

Wu & Anor v Statewide Developments Pty Ltd [2010] NSWSC 1016

The restrictive covenant, created pursuant to the Environmental Management Plan and registered before completion, detrimentally affected the property to a substantial extent. This entitled the plaintiffs to rescind under clause 23.3. The plaintiffs validly exercised this right. The subsequent conduct did not amount to a waiver or an election to affirm the contract, as the only rights remaining flowed from the termination. The defendant was not entitled to damages or forfeiture of the deposit.

Parties
First Plaintiff/1st Cross Defendant: Da Hui Wu; Second Plaintiff/2nd Cross Defendant: Jing Jing Li; Defendant/cross Claimant: Statewide Developments Pty Ltd
Jurisdiction
Australia
Judgment Date
10 September 2010
Procedural Posture
Equity Division Proceeding / Judgment After Trial
Outcome
Declaration that plaintiffs validly rescinded the contract; consequential orders to be made.
Legal Topics
Rescission of Contract, Restrictive Covenant, Damages for Breach of Contract, Waiver and Election, Return of Deposit
Conveyancing Contract Law Equity Rescission of Contract Restrictive Covenant Damages for Breach of Contract Waiver and Election Return of Deposit

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Parties

Da Hui Wu

First Plaintiff/1st Cross Defendant

Jing Jing Li

Second Plaintiff/2nd Cross Defendant

Statewide Developments Pty Ltd

Defendant/cross Claimant

Procedural Posture

Equity Division Proceeding / Judgment After Trial

Legal Issues

  1. 1 Did the restrictive covenant detrimentally affect the property to a substantial extent?
  2. 2 Were the plaintiffs entitled to rescind the contract pursuant to clause 23.3?
  3. 3 Did the plaintiffs waive their rights or elect to affirm the contract after rescission?

Ratio Decidendi

The restrictive covenant, created pursuant to the Environmental Management Plan and registered before completion, detrimentally affected the property to a substantial extent. This entitled the plaintiffs to rescind under clause 23.3. The plaintiffs validly exercised this right. The subsequent conduct did not amount to a waiver or an election to affirm the contract, as the only rights remaining flowed from the termination. The defendant was not entitled to damages or forfeiture of the deposit.

Court Disposition

Declaration that plaintiffs validly rescinded the contract; consequential orders to be made.

Orders

  • Declaration in accordance with paragraphs 1 and 3 of the Summons.
  • Parties to formulate Short Minutes of Order regarding interest on the deposit.