Debus v Hewitt [2003] NSWSC 176

Debus v Hewitt [2003] NSWSC 176

Clause 6(b) did not make time for payment under Clauses 1(c) and (d) of the Deed of the essence; a notice making time of the essence was required but not provided; the vendor wrongfully repudiated the contract, and purchaser validly rescinded and is entitled to repayment of monies paid under the contract.

Parties
Plaintiff: Catherine Debus; Defendant: Melissa Anne Hewitt
Jurisdiction
Australia
Judgment Date
11 March 2003
Procedural Posture
Civil / Judgment
Outcome
Declaration that contract validly rescinded by Plaintiff; Defendant ordered to repay amount paid under contract with interest; Defendant to pay Plaintiff's costs; Defendant's Cross Claim dismissed.
Legal Topics
Vendor and Purchaser, Instalment Contracts, Time of the Essence, Rescission, Repayment of Monies
Contract Law Equity Vendor and Purchaser Instalment Contracts Time of the Essence Rescission Repayment of Monies

Case Brief

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Parties

Catherine Debus

Plaintiff

Melissa Anne Hewitt

Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether the contract impliedly made time for payment of the essence
  2. 2 Whether a notice making time of the essence was required
  3. 3 Whether notice of intention to terminate was a notice making time of the essence

Ratio Decidendi

Clause 6(b) did not make time for payment under Clauses 1(c) and (d) of the Deed of the essence; a notice making time of the essence was required but not provided; the vendor wrongfully repudiated the contract, and purchaser validly rescinded and is entitled to repayment of monies paid under the contract.

Court Disposition

Declaration that contract validly rescinded by Plaintiff; Defendant ordered to repay amount paid under contract with interest; Defendant to pay Plaintiff's costs; Defendant's Cross Claim dismissed.

Orders

  • Defendant pay Plaintiff the sum of $35,914, the agreed net instalments.
  • Defendant pay interest on $35,914 from 30 September 2002 as per Supreme Court Rules.