Cong Xu v Austino Property Development Pty Ltd [2013] NSWSC 1177

Cong Xu v Austino Property Development Pty Ltd [2013] NSWSC 1177

Plaintiff's negotiations for early occupation were not inconsistent with the ongoing right to rescind under the contract; clauses permitted such negotiations without loss of rescission right. Plaintiff did not unequivocally affirm the contract, and accordingly validly exercised the right to rescind when notice was given.

Jurisdiction
Australia
Judgment Date
27 August 2013
Procedural Posture
Equity Proceeding / Principal Judgment
Outcome
Plaintiff validly rescinded contract; entitled to refund of deposit and interest; defendant's cross claim dismissed; defendant to pay plaintiff's costs.
Legal Topics
['non Compliance With Condition' "purchaser's Remedies" 'rescission' 'election Between Inconsistent Rights' 'affirmation' 'negotiations for Early Occupation' 'loss of Right to Rescind']
['conveyancing' 'contract Law'] ['non Compliance With Condition' "purchaser's Remedies" 'rescission' 'election Between Inconsistent Rights' 'affirmation' 'negotiations for Early Occupation' 'loss of Right to Rescind']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceeding / Principal Judgment

Legal Issues

  1. 1 ['Whether plaintiff validly rescinded contract for sale' "Whether plaintiff's conduct constituted affirmation of contract and loss of right to rescind" 'Effect of negotiations for early possession on rescission right']

Ratio Decidendi

Plaintiff's negotiations for early occupation were not inconsistent with the ongoing right to rescind under the contract; clauses permitted such negotiations without loss of rescission right. Plaintiff did not unequivocally affirm the contract, and accordingly validly exercised the right to rescind when notice was given.

Court Disposition

Plaintiff validly rescinded contract; entitled to refund of deposit and interest; defendant's cross claim dismissed; defendant to pay plaintiff's costs.

Orders

  • ['Declare plaintiff validly rescinded contract for sale by Notice of Rescission dated 8 October 2012.' 'Plaintiff entitled to refund of deposit of $126,000 plus all accrued interest.' 'Defendant to authorise agent Property Square Realty to release deposit and interest to plaintiff within seven days.' 'Liberty to...