Messina & Anor v Doncaster Developments (NSW) Pty Ltd [2007] NSWSC 1275

Messina & Anor v Doncaster Developments (NSW) Pty Ltd [2007] NSWSC 1275

Because the parties changed their arrangement from exchange of counterparts before registration to a put and call option exercisable after registration, special condition 4.2 could not operate when any contract came into existence: the strata plan was already registered and no longer provisional or capable of amendment by Doncaster under that condition. The registered strata plan gave lot 2 a different proportional unit entitlement from that disclosed in the contract annexed to the option deed. Clause 23.9.2 therefore entitled the purchasers to rescind; this supported termination of the option deed for anticipatory breach, and would also have entitled rescission of any contract formed by...

Jurisdiction
Australia
Judgment Date
12 November 2007
Procedural Posture
Conveyancing Proceeding Concerning Rescission of an Option Deed and Contract for Sale of Strata Title Land / Judgment After Hearing
Outcome
Declaration that the purchasers validly rescinded the option deed for anticipatory breach of contract.
Legal Topics
['vendor and Purchaser' 'put and Call Option Deed' 'anticipatory Breach of Contract' 'rescission' 'proportional Unit Entitlement' 'registered Strata Plan']
['conveyancing' 'contract Law' 'strata Title'] ['vendor and Purchaser' 'put and Call Option Deed' 'anticipatory Breach of Contract' 'rescission' 'proportional Unit Entitlement' 'registered Strata Plan']

Case Brief

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Procedural Posture

Conveyancing Proceeding Concerning Rescission of an Option Deed and Contract for Sale of Strata Title Land / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the purchasers were entitled to terminate the option deed for anticipatory breach because the proportional unit entitlement in the registered strata plan differed from the entitlement in the strata plan annexed to the contract for sale.' "Whether special condition 4.2 permitted the vendor to vary the strata plan so as to defeat the purchasers' right of rescission under clause 23.9.2." 'Whether, if the put option was validly exercised, the purchasers were entitled to rescind the contract for sale under clause 23.9.2.' "Whether the vendor's exercise of the put option was invalid because the contract tendered altered the deposit from $0.00 to $139,200.00."]

Ratio Decidendi

Because the parties changed their arrangement from exchange of counterparts before registration to a put and call option exercisable after registration, special condition 4.2 could not operate when any contract came into existence: the strata plan was already registered and no longer provisional or capable of amendment by Doncaster under that condition. The registered strata plan gave lot 2 a different proportional unit entitlement from that disclosed in the contract annexed to the option deed. Clause 23.9.2 therefore entitled the purchasers to rescind; this supported termination of the option deed for anticipatory breach, and would also have entitled rescission of any contract formed by...

Court Disposition

Declaration that the purchasers validly rescinded the option deed for anticipatory breach of contract.

Orders

  • ['The plaintiffs are entitled to a declaration that on 13 November 2006 they validly terminated the option deed.' 'The parties were directed to bring in short minutes of order reflecting the reasons.' 'Costs and any other appropriate orders were reserved for further argument.']