Wardy v Hardy & Anor

(2002) 11 BPR 20; [2002] NSWCA 215

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Vendor and purchaser
3. › Sale of land
4. › Unregistered plan of subdivision
5. › Vendor's obligation to do everything reasonable to have plan registered
6. › Whether vendor complied with clause 28.2
7. › Whether vendor excused by failure of independent contractor
8. › Non-delegable contractual obligation
9. › Conveyancing Act 1919 (NSW), s 88B
1. Contract
2. › Vendor and purchaser
3. › Specific performance
4. › Court supervision of specific performance
5. › Rescission
6. › Whether vendor entitled to rescind where plan not registered within time
7. › Whether leave to rescind required under court-supervised specific performance
1. Appeal
2. › New point on appeal
3. › Whether appellant permitted to raise new ground of law not argued at trial
4. › Whether respondent could have adduced additional evidence had point been taken below
1. Real Property
2. › Subdivision
3. › Development consent
4. › Section 73 Certificate
5. › Sydney Water requirements for separate connections
6. › Environmental Planning and Assessment Act 1979 (NSW), s 109J
7. › Sydney Water Act 1994 (NSW), s 73

Quick Take

Under clause 28.2 of the standard 2000 edition contract for sale, the vendor's obligation to do everything reasonable to have a subdivision plan registered is a personal, non-delegable obligation — the vendor cannot escape responsibility by showing that non-compliance arose from the failure of an independent contractor or agent. Vendors must anticipate the requirements of public authorities such as Sydney Water and cannot wait until those requirements are formally notified before taking steps to comply.