WARDY v HARDY & ANOR [2002] NSWCA 215

WARDY v HARDY & ANOR [2002] NSWCA 215

The appellant was not entitled to rescind because he had not complied with clause 28.2: although it was reasonable to request relaxation of Sydney Water's requirements, the appellant through his agents failed to anticipate requirements that ought to have been foreseen much earlier, and clause 28.2 required the vendor himself to do everything reasonable whether acting personally or through agents or contractors. The appellant was also not permitted to raise for the first time on appeal the argument that his duty was confined to the draft plan with private easements, because the trial proceeded on a contrary assumption and the respondents could have put additional material before the Court...

Jurisdiction
Australia
Judgment Date
05 July 2002
Procedural Posture
Contract Vendor and Purchaser Specific Performance Rescission / Appeal From Orders of the Supreme Court of New South Wales, Equity Division
Outcome
Appeal dismissed with costs.
Legal Topics
['vendor and Purchaser' 'lease Option to Purchase' 'specific Performance' 'subdivision Consent' 'unregistered Plan' 'rescission' 'sydney Water Section 73 Certificate' 'private Easements']
['contract Law' 'property Law' 'equity'] ['vendor and Purchaser' 'lease Option to Purchase' 'specific Performance' 'subdivision Consent' 'unregistered Plan' 'rescission' 'sydney Water Section 73 Certificate' 'private Easements']

Case Brief

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Procedural Posture

Contract Vendor and Purchaser Specific Performance Rescission / Appeal From Orders of the Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ['Whether the vendor did everything reasonable to have the subdivision plan registered within six months after the contract date under clause 28.2.' 'Whether the vendor was excused from non-compliance with clause 28.2 by showing that delay or non-compliance arose from the failure of independent contractors or agents.' 'Whether the appellant should be permitted to raise for the first time on appeal the argument that his duty was confined to obtaining registration of the draft plan with private easements annexed to the contract.']

Ratio Decidendi

The appellant was not entitled to rescind because he had not complied with clause 28.2: although it was reasonable to request relaxation of Sydney Water's requirements, the appellant through his agents failed to anticipate requirements that ought to have been foreseen much earlier, and clause 28.2 required the vendor himself to do everything reasonable whether acting personally or through agents or contractors. The appellant was also not permitted to raise for the first time on appeal the argument that his duty was confined to the draft plan with private easements, because the trial proceeded on a contrary assumption and the respondents could have put additional material before the Court...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']