Carbone v Metricon Homes Pty Ltd [2018] NSWCA 296

Carbone v Metricon Homes Pty Ltd [2018] NSWCA 296

On the proper construction of cl 2.1(c), read with the deed and annexed contract, the parties intended that either party could rescind the deed ab initio if the draft plan and draft instrument were not registered within 15 months. That construction gave practical utility to cl 2.1(c), was consistent with the annexed...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 December 2018
Procedural Posture
Civil Appeal Concerning Construction of Deeds of Put and Call Option / Appeal From the District Court of New South Wales
Outcome
Appeal dismissed with costs.
Legal Topics
['construction of Deeds of Put and Call Option' 'meaning of Rescind' 'rescission Ab Initio' 'refund of Call Option Fee' 'subdivision Condition Precedent' 'admissibility of Negotiation Correspondence for Contractual Construction']
['contract Law' 'property Law' 'civil Procedure'] ['construction of Deeds of Put and Call Option' 'meaning of Rescind' 'rescission Ab Initio' 'refund of Call Option Fee' 'subdivision Condition Precedent' 'admissibility of Negotiation Correspondence for Contractual Construction']

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Procedural Posture

Civil Appeal Concerning Construction of Deeds of Put and Call Option / Appeal From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the proper construction of "rescind" in cl 2.1(c) meant rescission of the deed from the beginning or only termination of executory obligations.' 'Whether the call option fee was refundable or recoverable upon rescission under cl 2.1(c).' 'Whether correspondence containing negotiations as to proposed terms of the deeds should be taken into account in construing the deeds.']

Ratio Decidendi

On the proper construction of cl 2.1(c), read with the deed and annexed contract, the parties intended that either party could rescind the deed ab initio if the draft plan and draft instrument were not registered within 15 months. That construction gave practical utility to cl 2.1(c), was consistent with the annexed contract's definition of rescission and the deed's distinction between termination and rescission, and meant that Metricon validly rescinded the nine deeds. The call option fees were refundable or recoverable upon rescission; Meagher JA and Payne JA held recovery was available even if dependent on total failure of consideration, while White JA held the refund was part of the...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']