HARDY & ANOR v. WARDY [2001] NSWSC 1141

HARDY & ANOR v. WARDY [2001] NSWSC 1141

The defendant had the onus of proving compliance with cl 28.2 and failed to do so. He did not take reasonable action to resolve Council's stated delay relating to parking conditions, left significant action to Motor Direct, and failed to make early inquiries of Sydney Water about requirements for a s 73 Compliance Certificate despite the fair certainty that such a certificate and separate sewer arrangements would be required. These failures meant the vendor had not done everything reasonable to have the subdivision plan registered within six months, so the condition for the vendor's rescission under cl 28.3.2 was not satisfied.

Jurisdiction
Australia
Judgment Date
12 December 2001
Procedural Posture
Vendor and Purchaser; Specific Performance of Agreement for Sale of Land in Unregistered Subdivision Plan / Defendant's Oral Application for Leave to Rescind Under Cl 28 After an Order for Specific Performance
Outcome
Defendant's application for leave to rescind refused.
Legal Topics
['sale of Land' 'unregistered Plan of Subdivision' 'specific Performance' 'rescission' "vendor's Obligation to Do Everything Reasonable to Register Plan" 'development Consent' 'sydney Water Compliance Certificate']
['property Law' 'contract Law' 'equity'] ['sale of Land' 'unregistered Plan of Subdivision' 'specific Performance' 'rescission' "vendor's Obligation to Do Everything Reasonable to Register Plan" 'development Consent' 'sydney Water Compliance Certificate']

Case Brief

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Procedural Posture

Vendor and Purchaser; Specific Performance of Agreement for Sale of Land in Unregistered Subdivision Plan / Defendant's Oral Application for Leave to Rescind Under Cl 28 After an Order for Specific Performance

Legal Issues

  1. 1 ['Whether the defendant vendor should be given leave to rescind the contract under cl 28 because the plan of subdivision was not registered within six months.' 'Whether the vendor had complied with cl 28.2 by doing everything reasonable to have the plan registered within six months.' "Whether failures by the vendor's surveyor or other contractors could excuse non-compliance with the vendor's express obligation under cl 28.2."]

Ratio Decidendi

The defendant had the onus of proving compliance with cl 28.2 and failed to do so. He did not take reasonable action to resolve Council's stated delay relating to parking conditions, left significant action to Motor Direct, and failed to make early inquiries of Sydney Water about requirements for a s 73 Compliance Certificate despite the fair certainty that such a certificate and separate sewer arrangements would be required. These failures meant the vendor had not done everything reasonable to have the subdivision plan registered within six months, so the condition for the vendor's rescission under cl 28.3.2 was not satisfied.

Court Disposition

Defendant's application for leave to rescind refused.

Orders

  • ['The defendant is not entitled to rescind and should not be given leave to do so.' "The Court proposed to attend in detail to the plaintiff's application for directions relating to specific performance."]