Strand Estates Pty Ltd v Yamamoto [1999] NSWSC 572

Strand Estates Pty Ltd v Yamamoto [1999] NSWSC 572

The deed of option was valid because the defendant, by delivering the executed option in response to the plaintiff solicitor's requests and by the 11 September 1998 conversation, authorised Mr Picone to act as her agent and do what was necessary to effect exchange. Exchange of counterparts occurred on 15 September 1998, the option was granted that day, and it was not void under s 66ZG. The s 66ZF certificate was within the plaintiff's executed counterpart and was received by the defendant through her agent at the time of exchange and grant, so there was no cooling-off period and no right to rescind under s 66ZH. The preparation of the draft option by the plaintiff's solicitor did not give...

Jurisdiction
Australia
Judgment Date
14 April 1999
Procedural Posture
Equity Proceedings Concerning Validity, Rescission and Extension of a Deed of Option to Purchase Residential Property / Expedited Hearing of Summons and Cross Claim
Outcome
Deed of option found to be valid; plaintiff succeeded on the substantive claims; cross-claim to be dismissed; option found validly extended to 15 September 1999.
Legal Topics
['validity of Deed of Option' 'exchange of Counterparts' 'cooling Off Certificate' 'rescission' 'implied Actual Authority' 'ratification' 'extension of Option']
['property Law' 'conveyancing' 'equity' 'agency' 'contract Law'] ['validity of Deed of Option' 'exchange of Counterparts' 'cooling Off Certificate' 'rescission' 'implied Actual Authority' 'ratification' 'extension of Option']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Validity, Rescission and Extension of a Deed of Option to Purchase Residential Property / Expedited Hearing of Summons and Cross Claim

Legal Issues

  1. 1 ['Whether the deed of option dated 15 September 1998 was validly granted by exchange of counterparts under s 66ZG of the Conveyancing Act 1919 (NSW).' "Whether the plaintiff's solicitor was authorised to act as the defendant's agent for the purpose of exchange and to do acts necessary to effect exchange." 'Whether the option was granted on 15 September 1998 or only when the defendant received the exchanged document on 17 September 1998.' 'Whether the defendant was entitled to rescind under s 66ZH because no s 66ZF certificate was received at or before grant and the option did not include a cooling-off notice.' "Whether the defendant could rescind because the plaintiff's solicitor prepared the draft deed of option and attached the required documents." 'Whether the plaintiff validly extended the option to 15 September 1999.']

Ratio Decidendi

The deed of option was valid because the defendant, by delivering the executed option in response to the plaintiff solicitor's requests and by the 11 September 1998 conversation, authorised Mr Picone to act as her agent and do what was necessary to effect exchange. Exchange of counterparts occurred on 15 September 1998, the option was granted that day, and it was not void under s 66ZG. The s 66ZF certificate was within the plaintiff's executed counterpart and was received by the defendant through her agent at the time of exchange and grant, so there was no cooling-off period and no right to rescind under s 66ZH. The preparation of the draft option by the plaintiff's solicitor did not give...

Court Disposition

Deed of option found to be valid; plaintiff succeeded on the substantive claims; cross-claim to be dismissed; option found validly extended to 15 September 1999.

Orders

  • ['Parties to bring in short minutes including dismissal of the cross-claim.' "The Court indicated it would hear counsel on costs and was minded to order that the defendant pay the plaintiff's costs of the application."]