Hijazi and Hijazi v Raptis [2002] NSWSC 499

Hijazi and Hijazi v Raptis [2002] NSWSC 499

The Council officer's letter established, by inference and the presumption of regularity, that Rockdale City Council had adopted a policy restricting development of the land because of flooding risk. The contrary statement in the section 149 certificate was wrong, causing a breach of the statutory warranty. The restrictions affected the land, the plaintiffs were unaware of them when entering the contract, and they would not have contracted had they known. The plaintiffs therefore validly rescinded and were entitled to return of the deposit.

Jurisdiction
Australia
Judgment Date
11 June 2002
Procedural Posture
Supreme Court of New South Wales Equity Division Proceedings Concerning Rescission of a Contract for Sale of Land and Return of Deposit / Judgment After Hearing
Outcome
Plaintiffs entitled to declarations that the contract was validly rescinded and that they are entitled to return of the deposit; defendant to pay costs; parties directed to bring in short minutes of orders.
Legal Topics
['section 149 Certificate' 'statutory Warranties in Contracts for Sale of Land' 'flood Prone Land' 'rescission' 'return of Deposit' 'best Evidence Rule' 'presumption of Regularity']
['conveyancing' 'evidence'] ['section 149 Certificate' 'statutory Warranties in Contracts for Sale of Land' 'flood Prone Land' 'rescission' 'return of Deposit' 'best Evidence Rule' 'presumption of Regularity']

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Procedural Posture

Supreme Court of New South Wales Equity Division Proceedings Concerning Rescission of a Contract for Sale of Land and Return of Deposit / Judgment After Hearing

Legal Issues

  1. 1 ['Whether Rockdale City Council had adopted a policy restricting development of the land because of the likelihood of flooding despite the section 149 certificate stating otherwise.' 'Whether the incorrect section 149 certificate constituted a breach of the statutory warranty under the Conveyancing Act 1919, s 52A(2)(b).' 'Whether the plaintiffs were entitled to rescind the contract and recover the deposit.']

Ratio Decidendi

The Council officer's letter established, by inference and the presumption of regularity, that Rockdale City Council had adopted a policy restricting development of the land because of flooding risk. The contrary statement in the section 149 certificate was wrong, causing a breach of the statutory warranty. The restrictions affected the land, the plaintiffs were unaware of them when entering the contract, and they would not have contracted had they known. The plaintiffs therefore validly rescinded and were entitled to return of the deposit.

Court Disposition

Plaintiffs entitled to declarations that the contract was validly rescinded and that they are entitled to return of the deposit; defendant to pay costs; parties directed to bring in short minutes of orders.

Orders

  • ['Declare that the contract for sale of the land was validly rescinded.' 'Declare that the plaintiffs are entitled to the return of the deposit of $33,300.00.' 'Order the defendant to give a written direction to the stakeholder forthwith to pay the deposit to the plaintiffs.' "Order the defendant to pay the...