Maloy v Jelacic (No 2) [2003] NSWSC 412

Maloy v Jelacic (No 2) [2003] NSWSC 412

The new evidence demonstrated that issuance of the building certificate depended on factors outside the defendants' control, namely Council's requirements for variation of development consent, rendering previous findings of causation unsustainable. Accordingly, specific performance was denied and the contract validly rescinded.

Jurisdiction
Australia
Judgment Date
16 May 2003
Procedural Posture
Civil / Post Judgment Re Opening; Final Decision on Claim for Specific Performance
Outcome
Specific performance denied; contract validly rescinded
Legal Topics
['specific Performance' 'rescission' 'contractual Conditions' 'building Certificate' 'variation of Development Consent']
['equity' 'conveyancing'] ['specific Performance' 'rescission' 'contractual Conditions' 'building Certificate' 'variation of Development Consent']

Case Brief

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Procedural Posture

Civil / Post Judgment Re Opening; Final Decision on Claim for Specific Performance

Legal Issues

  1. 1 ["Whether the defendants' breach caused non-issue of the building certificate" 'Whether specific performance should be granted' 'Whether the contract was validly rescinded']

Ratio Decidendi

The new evidence demonstrated that issuance of the building certificate depended on factors outside the defendants' control, namely Council's requirements for variation of development consent, rendering previous findings of causation unsustainable. Accordingly, specific performance was denied and the contract validly rescinded.

Court Disposition

Specific performance denied; contract validly rescinded

Orders

  • ['Claims for specific performance (paragraphs 1 and 2 of the summons) dismissed' 'Directions for written submissions regarding costs: Defendants to serve submissions within 14 days; Plaintiff to serve within a further 14 days']