HAWES & ORS v. CUZENO PTY LTD & ANOR [1999] NSWSC 1167

HAWES & ORS v. CUZENO PTY LTD & ANOR [1999] NSWSC 1167

The defendants were not entitled to rescind because, when the purported notices of rescission were given, they were in breach of Printed Condition A6.1 by failing to do everything reasonably necessary to have the strata plan registered within the 24 month plan registration time. Compliance with A6.1 was a condition of the vendors' right of rescission. The delays in preparing and lodging the Building Application and in completing construction were not adequately justified, and if A6.1 had been complied with the building work should have been completed in time to permit registration. The rescissions were invalid and the plaintiffs were entitled to have the contracts specifically performed.

Jurisdiction
Australia
Judgment Date
14 December 1999
Procedural Posture
Equity Proceedings Concerning Contracts for Sale of Home Units Off the Plan / Judgment After Hearing
Outcome
Judgment for the plaintiffs; purported rescissions declared invalid; contracts ordered to be specifically performed; damages to be assessed; cross-claim dismissed with judgment for the cross-defendants.
Legal Topics
['vendor and Purchaser' 'off the Plan Sales' 'unregistered Strata Plan' 'rescission' 'specific Performance' 'breach of Contract']
['property Law' 'contract Law' 'equity'] ['vendor and Purchaser' 'off the Plan Sales' 'unregistered Strata Plan' 'rescission' 'specific Performance' 'breach of Contract']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Contracts for Sale of Home Units Off the Plan / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the vendors' right to rescind because the Strata Plan was not registered within 24 months was conditional on compliance with Printed Condition A6.1." 'Whether the defendants did everything reasonably necessary to have the plan registered within the plan registration time.' 'Whether the purported notices of rescission were effective.' 'Whether the plaintiffs were entitled to specific performance and damages.']

Ratio Decidendi

The defendants were not entitled to rescind because, when the purported notices of rescission were given, they were in breach of Printed Condition A6.1 by failing to do everything reasonably necessary to have the strata plan registered within the 24 month plan registration time. Compliance with A6.1 was a condition of the vendors' right of rescission. The delays in preparing and lodging the Building Application and in completing construction were not adequately justified, and if A6.1 had been complied with the building work should have been completed in time to permit registration. The rescissions were invalid and the plaintiffs were entitled to have the contracts specifically performed.

Court Disposition

Judgment for the plaintiffs; purported rescissions declared invalid; contracts ordered to be specifically performed; damages to be assessed; cross-claim dismissed with judgment for the cross-defendants.

Orders

  • ['Declarations as in claims 15(a) and (d) of the Amended Statement of Claim.' 'Order that the contracts of sale be specifically performed and carried into execution under the direction of the Court.' 'Liberty to apply for directions under Order (2).' 'Give judgment for the plaintiffs for damages to be assessed: and...