Altis PropCo2 Pty Ltd v Majors Bay Development Pty Ltd [2022] NSWSC 403

Altis PropCo2 Pty Ltd v Majors Bay Development Pty Ltd [2022] NSWSC 403

The loan in clause 36 was a loan to acquire the Apartments substantially on the terms of the 29 January 2020 indicative term sheet. The rescission right in clause 36.2(b) was not expressed to be dependent on absolute compliance with the best endeavours obligation, although Altis 2 could not rely on the right if the failure to obtain finance was caused by its own breach. MBD did not prove any conspiracy or breach of the best endeavours obligation. Altis 2 reasonably responded to Westpac's COVID-19 concerns, was not required to accept materially different or futile financing steps, and Westpac was not prepared to offer the relevant loan before the Finance End Date. Altis 2 was therefore...

Jurisdiction
Australia
Judgment Date
08 April 2022
Procedural Posture
Equity Commercial List; Contract for Sale of Land Dispute Concerning Rescission and Recovery of Deposit / Principal Judgment After Hearing
Outcome
Plaintiff succeeded. The Contract was validly rescinded, the plaintiff was entitled to return of the deposit, judgment was entered for pre-judgment interest, and the defendant was ordered to pay costs.
Legal Topics
['contract for Sale of Land' 'contractual Construction' 'best Endeavours Obligation' 'finance Condition' 'rescission' 'return of Deposit' 'pre Judgment Interest' 'costs']
['contracts' 'equity' 'civil Procedure'] ['contract for Sale of Land' 'contractual Construction' 'best Endeavours Obligation' 'finance Condition' 'rescission' 'return of Deposit' 'pre Judgment Interest' 'costs']

Case Brief

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Procedural Posture

Equity Commercial List; Contract for Sale of Land Dispute Concerning Rescission and Recovery of Deposit / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the reference to the loan in clause 36.1 meant a loan substantially on the terms of the indicative term sheet dated 29 January 2020 or any loan from Westpac.' "Whether the right to rescind under clause 36.2(b) was dependent on compliance with the purchaser's obligations in clause 36.2(a)." 'Whether Altis 2 used its best endeavours to have the loan approved and finalise and execute loan documents.' 'Whether Altis 2 validly rescinded the Contract and was entitled to return of the deposit and pre-judgment interest.']

Ratio Decidendi

The loan in clause 36 was a loan to acquire the Apartments substantially on the terms of the 29 January 2020 indicative term sheet. The rescission right in clause 36.2(b) was not expressed to be dependent on absolute compliance with the best endeavours obligation, although Altis 2 could not rely on the right if the failure to obtain finance was caused by its own breach. MBD did not prove any conspiracy or breach of the best endeavours obligation. Altis 2 reasonably responded to Westpac's COVID-19 concerns, was not required to accept materially different or futile financing steps, and Westpac was not prepared to offer the relevant loan before the Finance End Date. Altis 2 was therefore...

Court Disposition

Plaintiff succeeded. The Contract was validly rescinded, the plaintiff was entitled to return of the deposit, judgment was entered for pre-judgment interest, and the defendant was ordered to pay costs.

Orders

  • ['Declaration that the contract entered into between the plaintiff and the defendant on 27 February 2020 was validly rescinded by the plaintiff.' 'Declaration that the plaintiff is entitled to the return of the deposit paid under the Contract.' 'Order requiring the defendant to take all steps and do all things...