SENAVALE v NOLAN [2000] NSWSC 619

SENAVALE v NOLAN [2000] NSWSC 619

There were no implied terms as to finance or prompt registration of the strata plan. Notice was properly served, and sufficient time was allowed to complete, especially by application of estoppel by convention regarding service. The defendants were not entitled to relief against forfeiture of deposit under s 55(2A) of the Conveyancing Act, as there were no special or exceptional circumstances rendering it unjust for the vendor to retain the deposit.

Jurisdiction
Australia
Judgment Date
06 July 2000
Procedural Posture
Civil / Judgment
Outcome
Plaintiff successful; contract validly rescinded; deposit forfeited; damages awarded to the plaintiff; no order for relief against forfeiture under s 55(2A) Conveyancing Act.
Legal Topics
['implication of Terms' 'service of Notice' 'contract Rescission' 'relief Against Forfeiture' 'estoppel by Convention' 'mitigation of Loss']
['contract Law' 'property Law' 'equity'] ['implication of Terms' 'service of Notice' 'contract Rescission' 'relief Against Forfeiture' 'estoppel by Convention' 'mitigation of Loss']

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

Civil / Judgment

Legal Issues

  1. 1 ['Whether the contract contained an implied term that it was subject to the defendants obtaining finance' 'Whether the contract contained an implied term that the plaintiff would register the strata plan without delay' 'Whether notice of registration of the strata plan was properly served' 'Whether the notice to complete was properly served' 'If the notice to complete was not properly served, are the defendants estopped from denying the validity of service' 'Is it unconscionable for the defendants to rely on any failure by the plaintiff properly to serve the notice to complete' 'Quantum of the plaintiff’s damages if successful' 'Whether the plaintiff has failed to mitigate its loss' 'Whether defendants are entitled to the return of the deposit under s 55(2A) Conveyancing Act 1919 or the law on relief against forfeiture']

Ratio Decidendi

There were no implied terms as to finance or prompt registration of the strata plan. Notice was properly served, and sufficient time was allowed to complete, especially by application of estoppel by convention regarding service. The defendants were not entitled to relief against forfeiture of deposit under s 55(2A) of the Conveyancing Act, as there were no special or exceptional circumstances rendering it unjust for the vendor to retain the deposit.

Court Disposition

Plaintiff successful; contract validly rescinded; deposit forfeited; damages awarded to the plaintiff; no order for relief against forfeiture under s 55(2A) Conveyancing Act.

Orders

  • ['Bring in short minutes for final orders.' 'Damages assessed including loss on resale, legal costs, rates and levies, and finance fees.' 'Interest on balance of purchase money to be allowed at court rates between termination and date of resale completion.' 'No order for the return of the deposit to defendants.']