Kaljo v Coady [2009] NSWSC 480

Kaljo v Coady [2009] NSWSC 480

The contract completion was conditional upon the purchaser entering into a deed with the Council. That event did not occur due to the Council’s requirements. The purchaser made reasonable efforts to satisfy the condition, and both parties treated the condition as continuing after the lapse of the formal time for satisfaction. The vendor was not in a position to convey unencumbered title and was not entitled to serve a notice to complete. The purchaser's rescission was valid, entitling her to recovery of the deposit.

Parties
Plaintiff: Lilli Kaljo; Defendant: Ellen Margaret Coady
Jurisdiction
Australia
Judgment Date
03 June 2009
Procedural Posture
Equity Conveyancing / Principal Judgment After Hearing of Summons and Cross Summons
Outcome
Judgment for the plaintiff (Kaljo) on the summons and for the cross-defendant (Kaljo) on the cross-summons.
Legal Topics
Completion of Contract Subject to Condition, Rescission for Non Satisfaction of Condition, Vendor's Right to Serve Notice to Complete, Termination and Forfeiture of Deposit
Conveyancing Property Law Completion of Contract Subject to Condition Rescission for Non Satisfaction of Condition Vendor's Right to Serve Notice to Complete Termination and Forfeiture of Deposit

Case Brief

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Parties

Lilli Kaljo

Plaintiff

Ellen Margaret Coady

Defendant

Procedural Posture

Equity Conveyancing / Principal Judgment After Hearing of Summons and Cross Summons

Legal Issues

  1. 1 Whether purchaser (Kaljo) made reasonable efforts to satisfy condition precedent (special condition 43)
  2. 2 Whether it was lawful for parties to complete despite non-satisfaction of condition
  3. 3 Whether vendor (Coady) was entitled to give notice to complete

Ratio Decidendi

The contract completion was conditional upon the purchaser entering into a deed with the Council. That event did not occur due to the Council’s requirements. The purchaser made reasonable efforts to satisfy the condition, and both parties treated the condition as continuing after the lapse of the formal time for satisfaction. The vendor was not in a position to convey unencumbered title and was not entitled to serve a notice to complete. The purchaser's rescission was valid, entitling her to recovery of the deposit.

Court Disposition

Judgment for the plaintiff (Kaljo) on the summons and for the cross-defendant (Kaljo) on the cross-summons.

Orders

  • The plaintiff is entitled to recover the deposit.
  • Costs order in favour of the plaintiff.