Hassarati v Annania [1999] NSWSC 517

Hassarati v Annania [1999] NSWSC 517

The magistrate erred in treating the vendors as in default merely because the s172 certificate had not been supplied by 31 January 1995. Completion on that date was not of the essence, and special condition 10 required the certificate to be supplied before the day on which completion actually took place. The vendors were therefore not in default in respect of anything that then should have been done when they gave notice to complete. Because the magistrate made no findings on the alleged building defects and related contractual obligations, the matter had to be remitted to the Local Court.

Jurisdiction
Australia
Judgment Date
03 June 1999
Procedural Posture
Appeal by Way of Stated Case From the Local Court in Proceedings for Breach of a Contract of Sale of Land / Supreme Court Appeal From Judgment of Magistrate L J Brennan
Outcome
Appeal allowed; matter remitted to the Local Court.
Legal Topics
['contract for Sale of Land' 'notice to Complete' 'rescission' 'repudiation' 'anticipatory Breach' 'stated Case Appeal']
['contract Law' 'property Law' 'civil Procedure'] ['contract for Sale of Land' 'notice to Complete' 'rescission' 'repudiation' 'anticipatory Breach' 'stated Case Appeal']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal by Way of Stated Case From the Local Court in Proceedings for Breach of a Contract of Sale of Land / Supreme Court Appeal From Judgment of Magistrate L J Brennan

Legal Issues

  1. 1 ['Whether the vendors were in default when they gave a notice to complete on 1 February 1995.' 'Whether special condition 10 required supply of the s172 certificate by 31 January 1995 or only before actual completion.' 'Whether the purchasers were entitled to repudiate or rescind the contract because of incomplete or defective building work.' 'Whether the vendors were entitled to rescind on the basis of anticipatory breach by the purchasers.']

Ratio Decidendi

The magistrate erred in treating the vendors as in default merely because the s172 certificate had not been supplied by 31 January 1995. Completion on that date was not of the essence, and special condition 10 required the certificate to be supplied before the day on which completion actually took place. The vendors were therefore not in default in respect of anything that then should have been done when they gave notice to complete. Because the magistrate made no findings on the alleged building defects and related contractual obligations, the matter had to be remitted to the Local Court.

Court Disposition

Appeal allowed; matter remitted to the Local Court.

Orders

  • ['Appeal allowed.' 'Matter remitted to the Local Court.']