Higgins v Statewide Developments Pty Ltd [2010] NSWSC 183

Higgins v Statewide Developments Pty Ltd [2010] NSWSC 183

The purchaser was not entitled to rescind under special condition 26.2 as the draft strata plan did not specify any wall positions, so no material or substantial difference was established. No oral rescission agreement was proved. The defendant failed to establish any damages from breach, as rental income exceeded holding costs and no loss of value was proved. In view of the vendor's misrepresentations regarding views and the lack of damage, the justice and equity of the case required the deposit to be repaid to the purchaser pursuant to s 55(2A) of the Conveyancing Act.

Jurisdiction
Australia
Judgment Date
16 March 2010
Procedural Posture
Equity Proceedings / Final Judgment After Hearing
Outcome
Order that deposit be paid to plaintiff. All other claims in the statement of claim and all claims in the cross-claim dismissed, except claims for costs. The question of costs is reserved.
Legal Topics
['off the Plan Purchase' 'misrepresentation' 'rescission' 'deposit Forfeiture' 'damages for Breach of Contract' 'statute of Frauds' 'oral Rescission' 's 55(2 A) Conveyancing Act']
['conveyancing' 'contract'] ['off the Plan Purchase' 'misrepresentation' 'rescission' 'deposit Forfeiture' 'damages for Breach of Contract' 'statute of Frauds' 'oral Rescission' 's 55(2 A) Conveyancing Act']

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Procedural Posture

Equity Proceedings / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the purchaser was entitled to rescind the contract under special condition 26.2 or at common law (Flight v Booth)' 'Whether there was a valid oral agreement to rescind the contract' 'Whether the vendor is entitled to damages for breach of contract' 'Whether the vendor is entitled to retain the deposit' 'Whether the purchaser is entitled to repayment of the deposit under s 55(2A) Conveyancing Act 1919']

Ratio Decidendi

The purchaser was not entitled to rescind under special condition 26.2 as the draft strata plan did not specify any wall positions, so no material or substantial difference was established. No oral rescission agreement was proved. The defendant failed to establish any damages from breach, as rental income exceeded holding costs and no loss of value was proved. In view of the vendor's misrepresentations regarding views and the lack of damage, the justice and equity of the case required the deposit to be repaid to the purchaser pursuant to s 55(2A) of the Conveyancing Act.

Court Disposition

Order that deposit be paid to plaintiff. All other claims in the statement of claim and all claims in the cross-claim dismissed, except claims for costs. The question of costs is reserved.

Orders

  • ['Order pursuant to s 55(2A) Conveyancing Act that the deposit paid by the plaintiff is to be returned to him.' 'All other claims in the statement of claim dismissed.' 'All claims in the cross-claim dismissed except the claim for costs.' 'Question of costs is reserved.']