Jobema Developments Pty Limited v Zhu & Ors [2016] NSWSC 3

Jobema Developments Pty Limited v Zhu & Ors [2016] NSWSC 3

Jobema did not satisfy the Court that it was just and equitable to permit rescission of the contract with Mr Wu. Several matters relied on by Jobema, including increased construction costs, increased purchase prices and financial requirements, were not established by substantive evidence. The delay before Jobema acquired the site was largely due to Xycom's lack of action, but Jobema acquired the site with knowledge of that position and assumed Xycom's obligations under the contract. Any assumption that legislation would not change was a business risk, and the selective and unexplained extension of some purchasers' sunset dates but not others tended against granting leave.

Jurisdiction
Australia
Judgment Date
12 January 2016
Procedural Posture
Application by Vendor Under S 66 ZL of the Conveyancing Act 1919 (nsw) to Rescind an Off the Plan Contract Under a Sunset Clause / Summons Filed 22 December 2015; Urgent Hearing in the Duty Vacation List; Principal Judgment
Outcome
The application is dismissed.
Legal Topics
['off the Plan Contract for Sale' 'sunset Clause' 'rescission' 'just and Equitable Relief' 'strata Plan Registration' 'novation of Contract Obligations']
['real Property' 'equity' 'contract Law'] ['off the Plan Contract for Sale' 'sunset Clause' 'rescission' 'just and Equitable Relief' 'strata Plan Registration' 'novation of Contract Obligations']

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Procedural Posture

Application by Vendor Under S 66 ZL of the Conveyancing Act 1919 (nsw) to Rescind an Off the Plan Contract Under a Sunset Clause / Summons Filed 22 December 2015; Urgent Hearing in the Duty Vacation List; Principal Judgment

Legal Issues

  1. 1 ['Whether Jobema should be permitted under s 66ZL of the Conveyancing Act 1919 (NSW) to rescind its off the plan contract with Mr Wu under a sunset clause.' 'Whether making an order permitting rescission was just and equitable in all the circumstances.' "Whether Jobema could rely on delay largely caused by Xycom after Jobema assumed Xycom's obligations under the contract." 'Whether the matters asserted by Jobema, including increased construction costs, current market prices and financial requirements for construction funding, were established by evidence.']

Ratio Decidendi

Jobema did not satisfy the Court that it was just and equitable to permit rescission of the contract with Mr Wu. Several matters relied on by Jobema, including increased construction costs, increased purchase prices and financial requirements, were not established by substantive evidence. The delay before Jobema acquired the site was largely due to Xycom's lack of action, but Jobema acquired the site with knowledge of that position and assumed Xycom's obligations under the contract. Any assumption that legislation would not change was a business risk, and the selective and unexplained extension of some purchasers' sunset dates but not others tended against granting leave.

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed, as between Jobema and Mr Wu.']