[1] Kierzkowski & Anor v. Goldsbrough; [2] Pinches & Anor v. Goldsbrough; [3] Tucker & Anor v. Goldsbrough [2005] NSWSC 597

[1] Kierzkowski & Anor v. Goldsbrough; [2] Pinches & Anor v. Goldsbrough; [3] Tucker & Anor v. Goldsbrough [2005] NSWSC 597

The Defendant was not entitled to rescind because, through his agent, he failed to take reasonable steps to press Integral Energy for a deadline or to seek another provider when delays in electrical design work made timely registration risky. Since compliance with clause 28.2 was a condition of rescission under clause 28.3, the rescission notices were invalid. The Plaintiffs' unchallenged evidence that they were ready, willing and able to perform was sufficient, and specific performance would not require impermissible continuous supervision by the Court.

Jurisdiction
Australia
Judgment Date
14 June 2005
Procedural Posture
Equity Division Proceedings Concerning Rescission of Contracts for Sale of Lots in an Unregistered Plan of Subdivision and Claims for Specific Performance / Final Hearing; Ex Tempore Judgment
Outcome
Specific performance ordered.
Legal Topics
['rescission' 'specific Performance' 'contracts for Sale of Land' 'unregistered Plan of Subdivision' 'vendor Obligation to Procure Registration of Plan']
['contract Law' 'equity' 'property Law'] ['rescission' 'specific Performance' 'contracts for Sale of Land' 'unregistered Plan of Subdivision' 'vendor Obligation to Procure Registration of Plan']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Rescission of Contracts for Sale of Lots in an Unregistered Plan of Subdivision and Claims for Specific Performance / Final Hearing; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the Defendant vendor had done everything reasonable under clause 28.2 to have the plan of subdivision registered within nine months after the contract date.' 'Whether the Defendant was entitled to rescind the contracts under clause 28.3.' 'Whether the Plaintiffs had to prove strictly their financial ability to pay the purchase price notwithstanding their unchallenged evidence that they were ready, willing and able to perform.' 'Whether specific performance should be refused because enforcement would require constant supervision by the Court.']

Ratio Decidendi

The Defendant was not entitled to rescind because, through his agent, he failed to take reasonable steps to press Integral Energy for a deadline or to seek another provider when delays in electrical design work made timely registration risky. Since compliance with clause 28.2 was a condition of rescission under clause 28.3, the rescission notices were invalid. The Plaintiffs' unchallenged evidence that they were ready, willing and able to perform was sufficient, and specific performance would not require impermissible continuous supervision by the Court.

Court Disposition

Specific performance ordered.

Orders

  • ["Declaration in the terms sought in paragraph A of the Plaintiffs' respective Statements of Claim." 'Order for specific performance in terms of paragraph B of the Prayers.']