Vamiso Pty Ltd v Chopard & Anor [1999] NSWCA 297

Vamiso Pty Ltd v Chopard & Anor [1999] NSWCA 297

The vendor was entitled to rescind the contract because the deferred commencement condition imposed by the Council requiring release of a restriction as to user within twelve months was a 'term or condition' of the development approval within the meaning of clause 25.1, and the condition was not acceptable to the vendor. The vendor did not affirm the contract, acted consistently with reserving its right to rescind, and was not required to exercise the right of rescission within any particular period before the conditions were met or waived.

Jurisdiction
Australia
Judgment Date
16 November 1999
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court Equity Division
Outcome
Appeal allowed
Legal Topics
['vendor and Purchaser' 'conditional Contracts' 'development Approval' 'rescission of Contract' 'specific Performance']
['property Law' 'contract Law'] ['vendor and Purchaser' 'conditional Contracts' 'development Approval' 'rescission of Contract' 'specific Performance']

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Procedural Posture

Appeal / Judgment on Appeal From Supreme Court Equity Division

Legal Issues

  1. 1 ["Whether the vendor's rescission of the contract was effective under clause 25.1 of the contract." "Whether the condition imposed by the Council's deferred commencement consent was a 'term or condition' within the meaning of the contract." "Whether the development approval was 'acceptable to the vendor in all respects.'" 'Whether the vendor was required to rescind the contract within a limited time.']

Ratio Decidendi

The vendor was entitled to rescind the contract because the deferred commencement condition imposed by the Council requiring release of a restriction as to user within twelve months was a 'term or condition' of the development approval within the meaning of clause 25.1, and the condition was not acceptable to the vendor. The vendor did not affirm the contract, acted consistently with reserving its right to rescind, and was not required to exercise the right of rescission within any particular period before the conditions were met or waived.

Court Disposition

Appeal allowed

Orders

  • ['Declaration and orders made by Young J on 4 December 1998 set aside' 'In lieu, order that the proceedings are dismissed with costs' "Purchasers to pay vendor's costs of the appeal" 'Purchasers to have certificate under the Suitors Fund Act if qualified']