Maloy v Jelacic [2003] NSWSC 23

Maloy v Jelacic [2003] NSWSC 23

The defendants were not entitled to rely on the contractual right of rescission because the continuing non-issue of the building certificate resulted from their own failure to take all reasonable actions appropriate or needful to obtain it. By early July 2002 the certificate was virtually within their grasp, and reasonable diligence in applying for the certificate and pursuing Council requirements would have led to the position later clarified by Council on 27 November 2002. Their purported rescission was therefore ineffective, and the plaintiff was entitled to specific performance.

Jurisdiction
Australia
Judgment Date
10 February 2003
Procedural Posture
Proceedings for Specific Performance of a Contract for Sale of Residential Property, With a Cross Claim for a Declaration That the Contract Had Been Validly Rescinded / Final Judgment After Hearing
Outcome
Specific performance ordered; the defendants' cross-claim dismissed; defendants to pay the plaintiff's costs.
Legal Topics
['specific Performance' 'conditional Contract for Sale of Land' 'building Certificate' 'rescission' 'obligation to Take Reasonable Steps to Satisfy a Contractual Condition']
['conveyancing' 'contract Law' 'equity'] ['specific Performance' 'conditional Contract for Sale of Land' 'building Certificate' 'rescission' 'obligation to Take Reasonable Steps to Satisfy a Contractual Condition']

Case Brief

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Procedural Posture

Proceedings for Specific Performance of a Contract for Sale of Residential Property, With a Cross Claim for a Declaration That the Contract Had Been Validly Rescinded / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendants complied with their contractual obligation to take all reasonable steps necessary to procure the issue of the building certificate from Hornsby Shire Council' "Whether the defendants' purported rescission by notice dated 8 July 2002 under special conditions 19 and 20 was valid" 'Whether the plaintiff was entitled to specific performance of the contract']

Ratio Decidendi

The defendants were not entitled to rely on the contractual right of rescission because the continuing non-issue of the building certificate resulted from their own failure to take all reasonable actions appropriate or needful to obtain it. By early July 2002 the certificate was virtually within their grasp, and reasonable diligence in applying for the certificate and pursuing Council requirements would have led to the position later clarified by Council on 27 November 2002. Their purported rescission was therefore ineffective, and the plaintiff was entitled to specific performance.

Court Disposition

Specific performance ordered; the defendants' cross-claim dismissed; defendants to pay the plaintiff's costs.

Orders

  • ['The plaintiff is entitled to the relief sought in the summons.' 'Specific performance of the contract will be ordered.' 'The cross-claim is dismissed.' "The defendants must pay the plaintiff's costs." 'The plaintiff is to prepare and serve draft short minutes of orders on the defendants within 14 days.' 'Any...