Riddle v White Constructions Pty Ltd [2018] NSWSC 384

Riddle v White Constructions Pty Ltd [2018] NSWSC 384

Deposited Plan 1206414 was the Subdivision Plan for the contract, and Lot 1 in Deposited Plan 1221171 did not form part of that subdivision even if its acquisition was required to achieve registration. The relevant comparison between Lot 14 on the Unregistered Plan and Lot 14 on the registered Subdivision Plan showed no other than minor reduction or variation, so Additional Provision 32.9 was not engaged. In any event, neither the 7 April 2017 nor the 18 April 2017 correspondence was a notice under Additional Provision 32.9. The plaintiffs were entitled to insist on conveyance of only Lot 14 in Deposited Plan 1206414, and the defendant's insistence that they accept Lot 1 in Deposited Plan...

Jurisdiction
Australia
Judgment Date
27 March 2018
Procedural Posture
Equity Proceedings by Purchasers Under a Contract for Sale of Land, With Cross Summons by the Vendor / Principal Judgment After Hearing
Outcome
Plaintiffs entitled to refund of deposit; defendant's Cross Summons dismissed save for removal of the caveat; defendant to pay plaintiffs' costs.
Legal Topics
['contract for Sale of Land' 'off the Plan Purchase' 'subdivision Plan' 'notice to Complete' 'recovery of Deposit' 'wrongful Termination' 'repudiation' 'caveat Removal']
['land Law' 'conveyancing' 'contract Law'] ['contract for Sale of Land' 'off the Plan Purchase' 'subdivision Plan' 'notice to Complete' 'recovery of Deposit' 'wrongful Termination' 'repudiation' 'caveat Removal']

Case Brief

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Procedural Posture

Equity Proceedings by Purchasers Under a Contract for Sale of Land, With Cross Summons by the Vendor / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiffs were bound under the contract to acquire only Lot 14 in Deposited Plan 1206414 or Lot 14 together with Lot 1 in Deposited Plan 1221171.' 'Whether Additional Provision 32.9 was engaged by any reduction or variation between the Unregistered Plan and the registered Subdivision Plan.' 'Whether the defendant served a valid notice under Additional Provision 32.9 requiring the plaintiffs to elect to complete or rescind.' 'Whether the Notice to Complete was valid when it required completion on the basis that the plaintiffs accept both Lot 14 in Deposited Plan 1206414 and Lot 1 in Deposited Plan 1221171.' "Whether the defendant's termination entitled it to retain the deposit or amounted to a wrongful repudiation requiring refund of the deposit." 'Whether the caveat lodged by the plaintiffs over Lot 1 in Deposited Plan 1232499 should be removed.']

Ratio Decidendi

Deposited Plan 1206414 was the Subdivision Plan for the contract, and Lot 1 in Deposited Plan 1221171 did not form part of that subdivision even if its acquisition was required to achieve registration. The relevant comparison between Lot 14 on the Unregistered Plan and Lot 14 on the registered Subdivision Plan showed no other than minor reduction or variation, so Additional Provision 32.9 was not engaged. In any event, neither the 7 April 2017 nor the 18 April 2017 correspondence was a notice under Additional Provision 32.9. The plaintiffs were entitled to insist on conveyance of only Lot 14 in Deposited Plan 1206414, and the defendant's insistence that they accept Lot 1 in Deposited Plan...

Court Disposition

Plaintiffs entitled to refund of deposit; defendant's Cross Summons dismissed save for removal of the caveat; defendant to pay plaintiffs' costs.

Orders

  • ['The defendant pay the sum of $48,500 to the plaintiffs, together with any interest earned on the deposit.' "The defendant's Cross Summons be dismissed, save that an order be made for removal of the caveat lodged by the plaintiffs over Lot 1 in Deposited Plan 1232499." "The defendant pay the plaintiffs' costs of...