Huang v Ceylan [2018] NSWSC 306

Huang v Ceylan [2018] NSWSC 306

The construction of a wall enclosing the approved media room to create a third bedroom was not specified exempt development under cl 2.51 and, in any event, involved the enclosure of an open area contrary to cl 2.52. Because the alteration was non-compliant development, it was open to the Council to make an order under s 121B Table Item 12(b) or 13 requiring removal of the wall and reinstatement of the apartment in accordance with the applicable plan. That undisclosed matter breached the statutory warranty, so the plaintiffs validly rescinded the contract and were entitled to return of the deposit; the defendant's forfeiture cross-claim failed.

Jurisdiction
Australia
Judgment Date
13 March 2018
Procedural Posture
Equity Proceedings Concerning a Contract for the Sale of a Residential Apartment / Principal Judgment
Outcome
Plaintiffs succeeded; the contract was validly rescinded, the defendant was ordered to take steps to procure return of the deposit, and the cross-claim was dismissed.
Legal Topics
['statutory Warranties Under S 52 A(2) of the Conveyancing Act 1919 (nsw)' 'rescission of Contract for Sale of Land' 'return of Deposit' 'development Consent and Exempt Development' 'upgrading or Demolition Order']
['contracts' 'conveyancing' 'planning and Development'] ['statutory Warranties Under S 52 A(2) of the Conveyancing Act 1919 (nsw)' 'rescission of Contract for Sale of Land' 'return of Deposit' 'development Consent and Exempt Development' 'upgrading or Demolition Order']

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

Equity Proceedings Concerning a Contract for the Sale of a Residential Apartment / Principal Judgment

Legal Issues

  1. 1 ['Whether the vendor breached the statutory warranty in Sch 3 Part 1 cl 1(d) of the Conveyancing (Sale of Land) Regulations 2010 (NSW).' 'Whether the alteration of the media room into a third bedroom was exempt development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW).' 'Whether the purchasers validly rescinded the contract and were entitled to return of the deposit.' 'Whether the vendor validly forfeited the deposit.']

Ratio Decidendi

The construction of a wall enclosing the approved media room to create a third bedroom was not specified exempt development under cl 2.51 and, in any event, involved the enclosure of an open area contrary to cl 2.52. Because the alteration was non-compliant development, it was open to the Council to make an order under s 121B Table Item 12(b) or 13 requiring removal of the wall and reinstatement of the apartment in accordance with the applicable plan. That undisclosed matter breached the statutory warranty, so the plaintiffs validly rescinded the contract and were entitled to return of the deposit; the defendant's forfeiture cross-claim failed.

Court Disposition

Plaintiffs succeeded; the contract was validly rescinded, the defendant was ordered to take steps to procure return of the deposit, and the cross-claim was dismissed.

Orders

  • ['Declare that the plaintiffs, by their notice of rescission dated 26 September 2016, validly rescinded the contract for the sale of land between the defendant as vendor and the plaintiffs as purchasers dated 26 August 2016.' 'Order that the defendant take all steps reasonably open to her to procure return of the...