Mordue v Kroone [2009] NSWSC 255

Mordue v Kroone [2009] NSWSC 255

The defendant was not entitled to rescind or terminate the reconveyance contract. Additional Condition A6 gave a right to rescind only if the plan was not registered within six months of the contract date, expiring on 21 September 2000, and it was not satisfied because of the defendant's own failure to perform, so she could not rely on it. The condition did not revive or become incorporated into the further orders of 26 March 2008. The letter of 21 August 2008 was not an effective notice to perform because the time allowed was not reasonable in the circumstances and, more importantly, it did not call on the plaintiffs to perform their actual outstanding obligation under order 4;...

Jurisdiction
Australia
Judgment Date
20 February 2009
Procedural Posture
Contract; Specific Performance; Application for Leave to Rescind / Defendant's Motion for Leave to Rescind Contract After Decree for Specific Performance
Outcome
Motion for leave to rescind contract dismissed with costs.
Legal Topics
['specific Performance' 'rescission' 'notice to Perform' 'sale of Land' 'unregistered Plan of Subdivision' "defaulting Party's Reliance on Contractual Right to Rescind"]
['contract Law' 'equity'] ['specific Performance' 'rescission' 'notice to Perform' 'sale of Land' 'unregistered Plan of Subdivision' "defaulting Party's Reliance on Contractual Right to Rescind"]

Case Brief

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Procedural Posture

Contract; Specific Performance; Application for Leave to Rescind / Defendant's Motion for Leave to Rescind Contract After Decree for Specific Performance

Legal Issues

  1. 1 ['Whether the defendant/vendor was entitled to rescind under Additional Condition A6 because the plan of subdivision was not registered within six months of the further orders of 26 March 2008.' 'Whether Additional Condition A6 revived or was imported into the further orders so as to create a later right to rescind.' 'Whether the letter of 21 August 2008 was an effective notice to perform making time essential and permitting termination or rescission for non-compliance.']

Ratio Decidendi

The defendant was not entitled to rescind or terminate the reconveyance contract. Additional Condition A6 gave a right to rescind only if the plan was not registered within six months of the contract date, expiring on 21 September 2000, and it was not satisfied because of the defendant's own failure to perform, so she could not rely on it. The condition did not revive or become incorporated into the further orders of 26 March 2008. The letter of 21 August 2008 was not an effective notice to perform because the time allowed was not reasonable in the circumstances and, more importantly, it did not call on the plaintiffs to perform their actual outstanding obligation under order 4;...

Court Disposition

Motion for leave to rescind contract dismissed with costs.

Orders

  • ['The Motion be dismissed with costs.']