Hall v Foster [2011] NSWSC 295

Hall v Foster [2011] NSWSC 295

The defendants were not entitled to rescind because, after affirming the contract following expiry of the original 12-month period, they remained obliged to use best reasonable endeavours to obtain registration within a reasonable time and failed to do so by not timely seeking amendment of the development consent, not ensuring prompt lodgement of the Construction Certificate application, allowing the development consent to expire, not seeking an extension when invited to show extenuating circumstances, and taking no further steps for months before the purported rescission. The invalid notice of rescission was a repudiation accepted by the plaintiffs. The defendants were not entitled to...

Jurisdiction
Australia
Judgment Date
15 April 2011
Procedural Posture
Contract for Sale of Land Dispute / Principal Judgment After Hearing
Outcome
The plaintiffs succeeded on the statement of claim; the cross-claim was dismissed with costs; the parties were directed to bring in short minutes to give effect to the reasons.
Legal Topics
['sale of Land' 'conditional Completion' 'registration of Plan of Subdivision' 'best Reasonable Endeavours' 'rescission' 'repudiation' 'mortgage Redemption' 'damages']
['contract' 'conveyancing' 'equity'] ['sale of Land' 'conditional Completion' 'registration of Plan of Subdivision' 'best Reasonable Endeavours' 'rescission' 'repudiation' 'mortgage Redemption' 'damages']

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

Contract for Sale of Land Dispute / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendants used their best reasonable endeavours under special condition 4 to obtain registration of the subdivision plan required by special condition 3.' 'Whether the defendants were entitled to rescind the contract by notice dated 17 December 2004 or otherwise.' 'Whether, if the defendants were not entitled to rescind, the notice of rescission amounted to a repudiation of the contract.' 'Whether there was an offer to redeem the mortgage which the plaintiffs were required to accept.' 'What damages or payments should be ordered or paid to either party.']

Ratio Decidendi

The defendants were not entitled to rescind because, after affirming the contract following expiry of the original 12-month period, they remained obliged to use best reasonable endeavours to obtain registration within a reasonable time and failed to do so by not timely seeking amendment of the development consent, not ensuring prompt lodgement of the Construction Certificate application, allowing the development consent to expire, not seeking an extension when invited to show extenuating circumstances, and taking no further steps for months before the purported rescission. The invalid notice of rescission was a repudiation accepted by the plaintiffs. The defendants were not entitled to...

Court Disposition

The plaintiffs succeeded on the statement of claim; the cross-claim was dismissed with costs; the parties were directed to bring in short minutes to give effect to the reasons.

Orders

  • ['Directs the parties to bring in short minutes to give effect to these reasons.' 'Orders the cross-claim be dismissed with costs.']