Carter v Mehmet [2021] NSWCA 286

Carter v Mehmet [2021] NSWCA 286

The Court of Appeal held that the purchasers' objections/requisitions regarding Aboriginal objects were not properly particularised nor proved; the vendors provided reasonable responses given the lack of knowledge or evidence of any Aboriginal remains or objects on the land. The memorial stone and plaque did not amount to an 'Aboriginal object' under the statutory definition, and their presence did not add any further development constraint due to pre-existing zoning restrictions. The vendors' insistence on default interest, though based on a misinterpretation, did not amount to repudiation absent a clear correction by the purchasers. The vendors were thus entitled to terminate the...

Jurisdiction
Australia
Judgment Date
25 November 2021
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal allowed
Legal Topics
['termination of Contract' 'defect in Title' 'repudiation' 'aboriginal Heritage' 'conveyancing' 'default Interest' 'guarantee Liability']
['contract Law' 'land Law' 'environmental Law'] ['termination of Contract' 'defect in Title' 'repudiation' 'aboriginal Heritage' 'conveyancing' 'default Interest' 'guarantee Liability']

Case Brief

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Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ["Whether the vendors repudiated the contract by failing to address purchasers' objections/requisitions based on alleged Aboriginal objects on the land" 'Whether purchasers were entitled to terminate for material or substantial defect in title by presence of memorial stone and plaque (as alleged Aboriginal objects)' 'Whether the vendors repudiated the contract by insisting on payment of default interest' 'Whether purchasers were entitled to recover their deposit pursuant to s 55 of the Conveyancing Act 1919 (NSW)' 'Whether the fifth respondent was liable as guarantor under the contract']

Ratio Decidendi

The Court of Appeal held that the purchasers' objections/requisitions regarding Aboriginal objects were not properly particularised nor proved; the vendors provided reasonable responses given the lack of knowledge or evidence of any Aboriginal remains or objects on the land. The memorial stone and plaque did not amount to an 'Aboriginal object' under the statutory definition, and their presence did not add any further development constraint due to pre-existing zoning restrictions. The vendors' insistence on default interest, though based on a misinterpretation, did not amount to repudiation absent a clear correction by the purchasers. The vendors were thus entitled to terminate the...

Court Disposition

Appeal allowed

Orders

  • ['Set aside orders of Ward CJ in Eq made on 17 April 2020' 'Judgment for the appellants against the respondents in the sum of $480,832.20 plus interest thereon from 29 November 2015 pursuant to s 100 of the Civil Procedure Act 2005 (NSW)' "Respondents to pay the appellants' costs of the proceeding below, including...