Attanasio v Zulfi & Sons Pty Ltd [2007] NSWSC 678

Attanasio v Zulfi & Sons Pty Ltd [2007] NSWSC 678

Clause 34.2 applied to revised draft strata plans before registration of the strata plan, and the relevant comparison for a subsequent revision was with the immediately preceding revised draft strata plan. The movement of the car space from the western wall of level 2 to the eastern wall of level 1 was a substantial change in position and not a minor discrepancy. Clause 35.4(a) did not displace cl 34.2, because cl 34.2 governed the position before registration and cl 35.4(a) governed the position after registration. The plaintiff was entitled to rescind under cl 34.2 and the evidence did not establish that he exercised that right otherwise than in good faith, fairly and reasonably and for...

Jurisdiction
Australia
Judgment Date
29 June 2007
Procedural Posture
Contract for Sale of Land Dispute Concerning Rescission of an Off the Plan Strata Lot Contract / Final Judgment
Outcome
Plaintiff obtained a declaration of valid rescission and an order for return of the deposit power guarantee; the first defendant's cross-claim was dismissed with costs.
Legal Topics
['construction and Interpretation of Contracts' 'rescission' 'off the Plan Strata Sale' 'car Space Allocation' 'implied Good Faith' 'repudiation and Termination']
['contracts' 'property Law'] ['construction and Interpretation of Contracts' 'rescission' 'off the Plan Strata Sale' 'car Space Allocation' 'implied Good Faith' 'repudiation and Termination']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Contract for Sale of Land Dispute Concerning Rescission of an Off the Plan Strata Lot Contract / Final Judgment

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to rescind under cl 34.2 of the special conditions before registration of the strata plan because the car space was moved in a revised draft strata plan.' 'Whether cl 34.2 was limited to alterations in the physical structure of the property and cl 35.4(a) was the exclusive right to rescind for changes in the draft strata plan.' 'Whether the change in location of the car space was more than a minor discrepancy.' 'Whether the plaintiff exercised the right to rescind other than in good faith, fairly and reasonably and for the purpose for which it was given.' "Whether the first defendant validly terminated the contract for the plaintiff's alleged repudiation."]

Ratio Decidendi

Clause 34.2 applied to revised draft strata plans before registration of the strata plan, and the relevant comparison for a subsequent revision was with the immediately preceding revised draft strata plan. The movement of the car space from the western wall of level 2 to the eastern wall of level 1 was a substantial change in position and not a minor discrepancy. Clause 35.4(a) did not displace cl 34.2, because cl 34.2 governed the position before registration and cl 35.4(a) governed the position after registration. The plaintiff was entitled to rescind under cl 34.2 and the evidence did not establish that he exercised that right otherwise than in good faith, fairly and reasonably and for...

Court Disposition

Plaintiff obtained a declaration of valid rescission and an order for return of the deposit power guarantee; the first defendant's cross-claim was dismissed with costs.

Orders

  • ['Declaration that the plaintiff validly rescinded the contract for sale.' 'Order for return of the deposit power guarantee issued by Vero Insurance Ltd in substitution for a deposit.' "Zulfi & Sons Pty Ltd to pay the plaintiff's costs." 'Cross-claim dismissed.' "Zulfi & Sons Pty Ltd to pay the plaintiff's costs of...