Mandalidis v Artline [1999] NSWSC 909

Mandalidis v Artline [1999] NSWSC 909

The statutory warranty was breached because, at the date of the contract, Botany Council had adopted a policy on aircraft noise that applied to the Property, responded to a relevant risk, and restricted development by affecting the assessment of development or building applications, yet the section 149 certificate attached to the contract stated that no such policy affected the land. The nondisclosure was a matter affecting the land, the purchaser was unaware of it, and the purchaser would not have entered into the contract had it known of the policy. The purchaser therefore validly rescinded under clause 19 of the Conveyancing (Sale of Land) Regulation 1995 and was entitled to return of...

Jurisdiction
Australia
Judgment Date
09 September 1999
Procedural Posture
Conveyancing Dispute Concerning Rescission of a Contract for Sale of Land and Return of Deposit / Hearing of Summons and Cross Claim
Outcome
Summons dismissed; judgment for the first defendant/cross-claimant on the cross-claim.
Legal Topics
['statutory Warranties in Contracts for Sale of Land' 'section 149 Certificates' 'aircraft Noise Policy' 'rescission' 'return of Deposit' 'purposive Interpretation of Remedial Legislation' 'ejusdem Generis and Noscitur a Sociis']
['conveyancing' 'property Law' 'statutory Interpretation'] ['statutory Warranties in Contracts for Sale of Land' 'section 149 Certificates' 'aircraft Noise Policy' 'rescission' 'return of Deposit' 'purposive Interpretation of Remedial Legislation' 'ejusdem Generis and Noscitur a Sociis']

Case Brief

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Procedural Posture

Conveyancing Dispute Concerning Rescission of a Contract for Sale of Land and Return of Deposit / Hearing of Summons and Cross Claim

Legal Issues

  1. 1 ["Whether the section 149 certificate attached to the contract failed to specify the true status of the land because it did not disclose Botany Council's policy on aircraft noise." "Whether Council's policy on aircraft noise was a policy to restrict development of the land because of the likelihood of land slip, bushfire, flooding, tidal inundation, subsidence or any other risk within item 12 of Schedule 4 to the Environmental Planning and Assessment Regulation 1994." 'Whether aircraft noise was an "any other risk" for the purposes of item 12.' 'Whether the breach constituted a failure to disclose a matter affecting the land, the purchaser was unaware of the matter, and the purchaser would not have entered into the contract had it been aware of the matter.' 'Whether the purchaser validly rescinded the contract and was entitled to return of the deposit.']

Ratio Decidendi

The statutory warranty was breached because, at the date of the contract, Botany Council had adopted a policy on aircraft noise that applied to the Property, responded to a relevant risk, and restricted development by affecting the assessment of development or building applications, yet the section 149 certificate attached to the contract stated that no such policy affected the land. The nondisclosure was a matter affecting the land, the purchaser was unaware of it, and the purchaser would not have entered into the contract had it known of the policy. The purchaser therefore validly rescinded under clause 19 of the Conveyancing (Sale of Land) Regulation 1995 and was entitled to return of...

Court Disposition

Summons dismissed; judgment for the first defendant/cross-claimant on the cross-claim.

Orders

  • ["The plaintiffs' summons is dismissed." 'Declarations that the contract was validly rescinded and that the first defendant is entitled to the return of the deposit are to be made.' 'The deposit of $46,000 paid under the contract is to be refunded to the first defendant under clause 21(1) of the Conveyancing (Sale...