Kayserian Nominees (No 1) Pty Ltd v J R Garner Pty Ltd [2008] NSWSC 803

Kayserian Nominees (No 1) Pty Ltd v J R Garner Pty Ltd [2008] NSWSC 803

Garner validly rescinded under Special Condition 13 because the building certificate had not been obtained by the completion date and Garner had substantially complied with its contractual obligations: it applied for the certificate, paid for and facilitated the process, and was not obliged, in light of Special Condition 2 and Standard Condition 18, to carry out Council-requisitioned rectification works, permit Kayserian to perform structural works, or challenge the Council's requisition. The condition could not be waived unilaterally because the right to rescind was conferred on both parties. The rescission was not vitiated by bad faith, capriciousness, arbitrariness or unconscionability...

Jurisdiction
Australia
Judgment Date
23 June 2008
Procedural Posture
Contract for Sale of Land; Claim for Specific Performance and Cross Claim for Declaration of Valid Rescission, Possession, Withdrawal of Caveat and Damages / Principal Judgment; Ex Tempore Judgment After Hearing
Outcome
Plaintiff's claim dismissed; defendant's rescission declared valid; defendant awarded possession, withdrawal of caveat, return of the deposit to the plaintiff, an inquiry as to mesne profits, and costs.
Legal Topics
['contract for Sale of Land' 'condition Subsequent' 'rescission' 'building Certificate Condition' 'waiver' 'relief Against Forfeiture' 'caveat Lodged Without Reasonable Cause' 'mesne Profits']
['contracts' 'property Law' 'equity' 'damages'] ['contract for Sale of Land' 'condition Subsequent' 'rescission' 'building Certificate Condition' 'waiver' 'relief Against Forfeiture' 'caveat Lodged Without Reasonable Cause' 'mesne Profits']

Case Brief

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Procedural Posture

Contract for Sale of Land; Claim for Specific Performance and Cross Claim for Declaration of Valid Rescission, Possession, Withdrawal of Caveat and Damages / Principal Judgment; Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the vendor was disentitled to rescind because it breached an express or implied obligation to do all things necessary to procure fulfilment of the building certificate condition.' 'Whether the purchaser could waive the benefit of the building certificate condition and insist on completion without the certificate.' "Whether the vendor's rescission was ineffective because it was in bad faith, capricious, arbitrary or unconscionable." 'Whether the purchaser was entitled to relief against forfeiture.' 'Whether the vendor was entitled to damages under (NSW) Real Property Act 1900, s 74P or to mesne profits after the purchaser remained in possession following rescission.']

Ratio Decidendi

Garner validly rescinded under Special Condition 13 because the building certificate had not been obtained by the completion date and Garner had substantially complied with its contractual obligations: it applied for the certificate, paid for and facilitated the process, and was not obliged, in light of Special Condition 2 and Standard Condition 18, to carry out Council-requisitioned rectification works, permit Kayserian to perform structural works, or challenge the Council's requisition. The condition could not be waived unilaterally because the right to rescind was conferred on both parties. The rescission was not vitiated by bad faith, capriciousness, arbitrariness or unconscionability...

Court Disposition

Plaintiff's claim dismissed; defendant's rescission declared valid; defendant awarded possession, withdrawal of caveat, return of the deposit to the plaintiff, an inquiry as to mesne profits, and costs.

Orders

  • ['Order that the further amended Statement of Claim be dismissed.' 'Declare that the Contract for Sale of Land dated 8 January 2007 between the plaintiff Kayserian Nominees (No 1) Pty Limited as purchaser, and the defendant J R Garner Pty Ltd as vendor, of the property situate at and known as XX Hotham Parade,...