BAKHOS v FENNER & ANOR [2007] NSWSC 641

BAKHOS v FENNER & ANOR [2007] NSWSC 641

The fire damage to the property was not substantial as defined in s 66J(2) of the Conveyancing Act 1919, and did not materially alter the land; therefore, the plaintiff had no entitlement to rescind under s 66L. The plaintiff's notice was invalid, his behaviour indicated repudiation, and the defendants' acceptance of repudiation effectively terminated the contract. The defendants were entitled to retain the deposit, recover one interest payment, and remove the caveat.

Jurisdiction
Australia
Judgment Date
20 June 2007
Procedural Posture
Contract Dispute—sale of Land / Final Judgment After Trial
Outcome
Judgment for defendants on statement of claim and cross-claim; declarations and order as claimed; deposit forfeited; caveat removed; costs awarded to defendants.
Legal Topics
['vendor and Purchaser' 'rescission' 'repudiation' 'fire Damage' 'caveat' 'deposit Forfeiture']
['property Law' 'contract Law' 'equity'] ['vendor and Purchaser' 'rescission' 'repudiation' 'fire Damage' 'caveat' 'deposit Forfeiture']

Case Brief

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Procedural Posture

Contract Dispute—sale of Land / Final Judgment After Trial

Legal Issues

  1. 1 ["Whether fire damage constituted 'substantial damage' under s 66J(2) of Conveyancing Act 1919" 'Whether plaintiff validly rescinded contract under s 66L of Conveyancing Act 1919' "Whether vendors' acceptance of repudiation was effective termination" 'Entitlement to retain deposit and interest payments' 'Entitlement to removal of caveat']

Ratio Decidendi

The fire damage to the property was not substantial as defined in s 66J(2) of the Conveyancing Act 1919, and did not materially alter the land; therefore, the plaintiff had no entitlement to rescind under s 66L. The plaintiff's notice was invalid, his behaviour indicated repudiation, and the defendants' acceptance of repudiation effectively terminated the contract. The defendants were entitled to retain the deposit, recover one interest payment, and remove the caveat.

Court Disposition

Judgment for defendants on statement of claim and cross-claim; declarations and order as claimed; deposit forfeited; caveat removed; costs awarded to defendants.

Orders

  • ['Judgment for defendants with costs on statement of claim.' 'Declarations and orders in the amended first cross-claim as claimed.' 'Judgment for defendants for $9,550.' "Plaintiff/cross-defendant to pay defendants'/cross-claimants' costs of cross-claim." 'Liberty reserved to apply for further relief in respect of...