BRISONS HOLDINGS v IRONWILL [1999] NSWSC 91

BRISONS HOLDINGS v IRONWILL [1999] NSWSC 91

The statement in the s 149 certificate forming part of the contract, read in context with the contract and marketing materials, clearly represented that the development consent remained effective. That representation was false because the consent had lapsed, was material, and induced the purchaser to buy land for an immediate development project. The later extension granted months after rescission and after the contractual completion date did not retrospectively make the consent current or cure the misrepresentation and misdescription. The purchaser's equitable claim to rescission was unanswerable and the notice of rescission was treated as effective on 5 May 1998, entitling the purchaser...

Jurisdiction
Australia
Judgment Date
19 February 1999
Procedural Posture
Equity Proceedings Concerning Rescission of a Contract for Sale of Land, Return of Deposit, and Vendor's Cross Claim / Final Judgment and Orders
Outcome
The contract was declared validly rescinded; the purchaser was declared entitled to return of the deposit; the second defendant was ordered to return the deposit; the vendor's cross-claim was dismissed with costs.
Legal Topics
['vendor and Purchaser' 'rescission' 'innocent Misrepresentation' 'misdescription' 'development Consent' 'planning Certificate Under S 149' 'return of Deposit' 'notice to Complete']
['equity' 'property Law' 'contract Law' 'conveyancing' 'planning and Development Law'] ['vendor and Purchaser' 'rescission' 'innocent Misrepresentation' 'misdescription' 'development Consent' 'planning Certificate Under S 149' 'return of Deposit' 'notice to Complete']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Rescission of a Contract for Sale of Land, Return of Deposit, and Vendor's Cross Claim / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the purchaser was entitled to rescission because the contract, including the annexed s 149 certificate, represented that development consent DA No.234/93 was current when it had lapsed.' 'Whether the misrepresentation or misdescription was substantial and induced the purchaser to enter into the contract.' "Whether a later extension of the lapsed development consent affected the purchaser's entitlement to rescission or the vendor's entitlement to enforce the contract." "Whether the purchaser was entitled to return of the deposit and whether the vendor's cross-claim should be dismissed."]

Ratio Decidendi

The statement in the s 149 certificate forming part of the contract, read in context with the contract and marketing materials, clearly represented that the development consent remained effective. That representation was false because the consent had lapsed, was material, and induced the purchaser to buy land for an immediate development project. The later extension granted months after rescission and after the contractual completion date did not retrospectively make the consent current or cure the misrepresentation and misdescription. The purchaser's equitable claim to rescission was unanswerable and the notice of rescission was treated as effective on 5 May 1998, entitling the purchaser...

Court Disposition

The contract was declared validly rescinded; the purchaser was declared entitled to return of the deposit; the second defendant was ordered to return the deposit; the vendor's cross-claim was dismissed with costs.

Orders

  • ['Declare that the Contract for Sale of Land made 11 March 1998 between the plaintiff as purchaser and the first defendant as vendor for the sale and purchase of the property known as 146-148 Mulgoa Road, Penrith being the whole of the land comprised in Folio Identifier 12/868453 was validly rescinded.' 'Declare...