Marinkovic v Pat McGrath Engineering Pty Limited [2004] NSWSC 571

Marinkovic v Pat McGrath Engineering Pty Limited [2004] NSWSC 571

The defendant was entitled to rescind the contract for breach of implied warranty relating to council approval for the mezzanine floor, as there was a matter justifying an upgrading or demolition order which was not disclosed, and the purchaser would not have entered the contract had it known. The deposit is repayable to the defendant. The defendant was liable to compensate the plaintiff $32,500 under s74P for pecuniary loss caused by refusal to withdraw caveat, which prevented completion of a subsequent sale and resulted in damages payable by plaintiff to Wilhave Pty Ltd.

Jurisdiction
Australia
Judgment Date
10 June 2004
Procedural Posture
Civil / Final Judgment
Outcome
Contract validly rescinded by defendant; deposit repayable; compensation for wrongful refusal to withdraw caveat; each party bears own costs.
Legal Topics
['breach of Contract' 'implied Warranties' 'caveat Compensation' 'rescission of Contract' 'building Certificate']
['conveyancing' 'land Law' 'equity'] ['breach of Contract' 'implied Warranties' 'caveat Compensation' 'rescission of Contract' 'building Certificate']

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Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 ['Whether defendant validly rescinded the contract for breach of warranty under section 52A Conveyancing Act 1919' 'Whether compensation is payable under section 74P Real Property Act 1900 due to failure to withdraw caveat']

Ratio Decidendi

The defendant was entitled to rescind the contract for breach of implied warranty relating to council approval for the mezzanine floor, as there was a matter justifying an upgrading or demolition order which was not disclosed, and the purchaser would not have entered the contract had it known. The deposit is repayable to the defendant. The defendant was liable to compensate the plaintiff $32,500 under s74P for pecuniary loss caused by refusal to withdraw caveat, which prevented completion of a subsequent sale and resulted in damages payable by plaintiff to Wilhave Pty Ltd.

Court Disposition

Contract validly rescinded by defendant; deposit repayable; compensation for wrongful refusal to withdraw caveat; each party bears own costs.

Orders

  • ['Declare that the contract for sale has been validly rescinded by the defendant.' 'Order the plaintiff to pay the defendant $79,000, plus interest at Schedule J Supreme Court Rules 1970 from 21 February 2001 to 21 February 2002.' 'Order the plaintiff to execute documents for vesting any earned interest on the...