Jin Yi Construction Pty Ltd v Romeciti Eastwood Pty Ltd [2022] NSWSC 56

Jin Yi Construction Pty Ltd v Romeciti Eastwood Pty Ltd [2022] NSWSC 56

The plaintiff was entitled to rescind the contract as the unit delivered was materially different from that described in the contract, specifically the reduction of commercial space by more than 5% due to the inclusion of a new fixed storage space, amounting to a substantial, detrimental and permanent change. This entitled the purchaser under the contract, and at common law following Flight v Booth, to rescind and to the return of its deposit, as the property offered was not that contracted for.

Jurisdiction
Australia
Judgment Date
04 February 2022
Procedural Posture
Principal Judgment (equity Contract for Sale of Land) / Final Judgment and Orders
Outcome
Plaintiff entitled to rescind; deposit to be returned; cross-claim dismissed; costs to plaintiff.
Legal Topics
['sale of Land' 'strata Title' 'rescission of Contract' 'return of Deposit' 'variation of Contract' 'misleading Conduct']
['contract Law' 'property Law' 'equity'] ['sale of Land' 'strata Title' 'rescission of Contract' 'return of Deposit' 'variation of Contract' 'misleading Conduct']

Case Brief

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Procedural Posture

Principal Judgment (equity Contract for Sale of Land) / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the purchaser was entitled to rescind the contract for sale of land on the basis that the constructed strata unit differed materially from the draft plan attached to the contract' 'Whether the purchaser was entitled to return of deposit under the contract, at common law (Flight v Booth), or under statute' "Whether contract exclusion clauses ousted the purchaser's right to rescind under Flight v Booth" 'Whether relief should be given under Conveyancing Act 1919 (NSW), s 55(2A)' 'Whether the purchaser was induced by misleading and deceptive conduct in contravention of Australian Consumer Law']

Ratio Decidendi

The plaintiff was entitled to rescind the contract as the unit delivered was materially different from that described in the contract, specifically the reduction of commercial space by more than 5% due to the inclusion of a new fixed storage space, amounting to a substantial, detrimental and permanent change. This entitled the purchaser under the contract, and at common law following Flight v Booth, to rescind and to the return of its deposit, as the property offered was not that contracted for.

Court Disposition

Plaintiff entitled to rescind; deposit to be returned; cross-claim dismissed; costs to plaintiff.

Orders

  • ['Declare that the plaintiff validly rescinded the contract for sale of land between the plaintiff and the first defendant dated 26 September 2017.' 'Order the second defendant to repay to the plaintiff the amount of the deposit paid under the contract ($154,000) and interest earned during the period it was held as...