SHIMDEN PTY LTD v RONA [2006] NSWCA 256

SHIMDEN PTY LTD v RONA [2006] NSWCA 256

Special condition 45(c) referred to the contractual completion date, 13 January 2004, not the actual or later date for completion. Because the vendor was unable to provide a discharge of the covenant by that date, the purchaser was entitled to rescind by written notice under special condition 45. The 21 day notice period in special condition 45(d) did not give the vendor a right to cure the problem and prevent the rescission from taking effect. The purchaser's reliance on the notices was justified and not repudiatory. The vendor's later notices and purported terminations did not defeat the purchaser's entitlement to return of the deposit.

Jurisdiction
Australia
Judgment Date
19 September 2006
Procedural Posture
Appeal and Cross Appeal in a Contract for Sale of Land Dispute / Court of Appeal From Orders of White J in the Supreme Court of New South Wales, Equity Division
Outcome
Appeal allowed only to the extent of deleting Declarations 1 and 2 made by White J; otherwise White J's orders affirmed; cross-appeal dismissed.
Legal Topics
['rescission of Contract for Sale of Land' 'construction of Special Condition' 'completion Date' 'notice to Complete' 'return of Deposit' 'repudiation' 'implied Contractual Terms']
['property Law' 'contract Law' 'vendor and Purchaser'] ['rescission of Contract for Sale of Land' 'construction of Special Condition' 'completion Date' 'notice to Complete' 'return of Deposit' 'repudiation' 'implied Contractual Terms']

Case Brief

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Procedural Posture

Appeal and Cross Appeal in a Contract for Sale of Land Dispute / Court of Appeal From Orders of White J in the Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ['Whether "completion date" in special condition 45(c) meant the contractual completion date of 13 January 2004 or the actual or later required time for completion.' 'Whether the purchaser validly rescinded under special condition 45 because the vendor was unable to provide a discharge of the covenant by the completion date.' 'Whether the 21 day notice requirement in special condition 45(d) allowed the vendor to cure the inability to provide the discharge before rescission took effect.' "Whether the purchaser's notices of rescission and insistence on their effectiveness amounted to repudiation." "Whether the vendor's notices to complete or purported terminations entitled it to retain the deposit."]

Ratio Decidendi

Special condition 45(c) referred to the contractual completion date, 13 January 2004, not the actual or later date for completion. Because the vendor was unable to provide a discharge of the covenant by that date, the purchaser was entitled to rescind by written notice under special condition 45. The 21 day notice period in special condition 45(d) did not give the vendor a right to cure the problem and prevent the rescission from taking effect. The purchaser's reliance on the notices was justified and not repudiatory. The vendor's later notices and purported terminations did not defeat the purchaser's entitlement to return of the deposit.

Court Disposition

Appeal allowed only to the extent of deleting Declarations 1 and 2 made by White J; otherwise White J's orders affirmed; cross-appeal dismissed.

Orders

  • ['The appeal is allowed to the extent only of varying the orders of White J by deleting Declarations 1 and 2.' 'Save as aforesaid the orders of White J are affirmed.' 'The Cross-appeal is dismissed.' "Order that the appellant pay the respondent's costs of the appeal." 'Order that each party pay its or his own costs...