Simring v Marinchek [1999] NSWSC 35

Simring v Marinchek [1999] NSWSC 35

There was no error or misdescription in the contract as the difference in area arose from statutory changes in measurement and not from any inaccuracy at the time of contract. Because the claim for compensation was unarguable on its face, no valid claim existed under cl 6, and the arbitration/stay provisions were not engaged.

Parties
Plaintiff: Gene Simring; Plaintiff: Heng-Ja Simring; Defendant: Scott Marinchek
Jurisdiction
Australia
Judgment Date
02 February 1999
Procedural Posture
Equity Proceedings (declaratory Relief and Specific Performance) / Judgment at First Instance
Outcome
Plaintiffs declared entitled to declaration that no misdescription occurred; defendant's notice of motion for stay dismissed with costs; matter stood over to Registrar's list for future directions.
Legal Topics
Misdescription in Sale of Land, Strata Title Area Measurement, Compensation Claims Under Contract, Effect of Statutory Change on Property Measurements, Arbitration Clause in Contract
Conveyancing Real Property Equity Misdescription in Sale of Land Strata Title Area Measurement Compensation Claims Under Contract Effect of Statutory Change on Property Measurements Arbitration Clause in Contract

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Parties

Gene Simring

Plaintiff

Heng-Ja Simring

Plaintiff

Scott Marinchek

Defendant

Procedural Posture

Equity Proceedings (declaratory Relief and Specific Performance) / Judgment at First Instance

Legal Issues

  1. 1 Whether the difference in area between the strata plan and surveyed lot constitutes an error or misdescription under the contract
  2. 2 Whether a claim for compensation based on such a difference can be sustained under the contract terms
  3. 3 Whether arbitration under the contract was required in the circumstances

Ratio Decidendi

There was no error or misdescription in the contract as the difference in area arose from statutory changes in measurement and not from any inaccuracy at the time of contract. Because the claim for compensation was unarguable on its face, no valid claim existed under cl 6, and the arbitration/stay provisions were not engaged.

Court Disposition

Plaintiffs declared entitled to declaration that no misdescription occurred; defendant's notice of motion for stay dismissed with costs; matter stood over to Registrar's list for future directions.

Orders

  • Declaration made that no error or misdescription occurred in the contract
  • Defendant's notice of motion for stay dismissed with costs