Abourjaily v Parkview Estate Pty Ltd [2017] NSWSC 1256

Abourjaily v Parkview Estate Pty Ltd [2017] NSWSC 1256

The defendant vendor failed to use all reasonable or best endeavours to procure registration of the plan of subdivision by the stipulated Registration Date, particularly by not diligently resolving stormwater easement issues and in delaying payment to contractors. These breaches materially contributed to the non-registration of the plan by the Registration Date, disentitling the defendant from rescinding the contracts pursuant to the relevant clause. The purported rescissions were therefore ineffective, and the contracts remain on foot, entitling the plaintiffs to specific performance.

Jurisdiction
Australia
Judgment Date
19 September 2017
Procedural Posture
Principal Judgment / Final Hearing and Orders
Outcome
Plaintiffs entitled to orders for specific performance. Rescissions by defendant declared ineffective. Plaintiffs to have their costs.
Legal Topics
['conveyancing' 'rescission' 'specific Performance' 'reasonable Endeavours' 'best Endeavours' 'registration of Plan of Subdivision' "vendor's Obligations" "purchaser's Rights" 'construction and Interpretation of Contract']
['land Law' 'contracts' 'equity'] ['conveyancing' 'rescission' 'specific Performance' 'reasonable Endeavours' 'best Endeavours' 'registration of Plan of Subdivision' "vendor's Obligations" "purchaser's Rights" 'construction and Interpretation of Contract']

Case Brief

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Procedural Posture

Principal Judgment / Final Hearing and Orders

Legal Issues

  1. 1 ['Whether the defendant vendor was entitled to rescind contracts for the sale of land for failure to register the plan of subdivision by the stipulated date' 'Whether the vendor used all reasonable (or best) endeavours to secure registration as required under the contracts' 'Whether the right of rescission was conditional upon the exercise of reasonable or best endeavours' "Whether the vendor's failure to fulfil obligations disentitled it from rescinding the contracts" 'Whether improper dealing with deposits affected the right to rescind']

Ratio Decidendi

The defendant vendor failed to use all reasonable or best endeavours to procure registration of the plan of subdivision by the stipulated Registration Date, particularly by not diligently resolving stormwater easement issues and in delaying payment to contractors. These breaches materially contributed to the non-registration of the plan by the Registration Date, disentitling the defendant from rescinding the contracts pursuant to the relevant clause. The purported rescissions were therefore ineffective, and the contracts remain on foot, entitling the plaintiffs to specific performance.

Court Disposition

Plaintiffs entitled to orders for specific performance. Rescissions by defendant declared ineffective. Plaintiffs to have their costs.

Orders

  • ['Declarations that the purported rescissions by the defendant were ineffective.' 'Orders for specific performance of the contracts.' "Defendant to pay the plaintiffs' costs." 'Parties to bring in short minutes of orders within 14 days.']