AJDJ & Ors v Pacific West Developments [2001] NSWSC 1174

AJDJ & Ors v Pacific West Developments [2001] NSWSC 1174

The defendant was not entitled to rescind because it did not do everything reasonable to have the plan registered within 12 months: it failed to exercise due expedition before construction commenced, did not employ an experienced and competent builder, and was effectively the builder despite lacking relevant experience. In any event, it was unreasonable and unjust for the defendant to rescind for its own financial purposes when it could have used clause 45 to extend time for delays relied upon.

Jurisdiction
Australia
Judgment Date
14 December 2001
Procedural Posture
Contract Proceedings Seeking Specific Performance and Declaration as to Rescission of Contracts for Sale of Land / Judgment After Hearing in the Supreme Court of New South Wales, Equity Division
Outcome
Decision in favour of the plaintiffs; the defendant's notices of rescission were invalid; question of damages reserved.
Legal Topics
['off the Plan Contracts' 'registration of Plan of Subdivision' 'vendor Rescission' 'specific Performance' 'reasonable Steps Obligation' 'unconscionable or Unjust Exercise of Rescission Power']
['contract Law' 'property Law' 'equity'] ['off the Plan Contracts' 'registration of Plan of Subdivision' 'vendor Rescission' 'specific Performance' 'reasonable Steps Obligation' 'unconscionable or Unjust Exercise of Rescission Power']

Case Brief

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Procedural Posture

Contract Proceedings Seeking Specific Performance and Declaration as to Rescission of Contracts for Sale of Land / Judgment After Hearing in the Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ['Whether the defendant vendor did everything reasonable to have the plan of subdivision registered within 12 months after the date of the contracts.' 'Whether the defendant was entitled to rescind the contracts on 14 November 2000 under clause 28.3.2.' 'Whether it was unreasonable or unconscionable for the defendant to rescind without using clause 45 to extend time for delays.' 'Whether the plaintiffs were entitled to orders in their favour, including specific performance.']

Ratio Decidendi

The defendant was not entitled to rescind because it did not do everything reasonable to have the plan registered within 12 months: it failed to exercise due expedition before construction commenced, did not employ an experienced and competent builder, and was effectively the builder despite lacking relevant experience. In any event, it was unreasonable and unjust for the defendant to rescind for its own financial purposes when it could have used clause 45 to extend time for delays relied upon.

Court Disposition

Decision in favour of the plaintiffs; the defendant's notices of rescission were invalid; question of damages reserved.

Orders

  • ['Orders in accordance with the Short Minutes of Order initialled by Davies AJ and dated 14 December 2001.' 'Question of damages reserved.']