Solid Investments Australia Pty Ltd v Clifford & Anor

(2010) 27 VR 41; [2010] VSCA 59

Victorian Court of Appeal

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Interrogate

Catchwords

1. Real Property
2. › Sale of land
3. › Sale of lots on unregistered plan of subdivision
4. › Right of purchaser to rescind
5. › Whether contractual mechanism for vendor to extend plan registration date constituted specification of 'another period'
6. › Whether 'specified period' must be fixed, definite and certain at date of contract
7. › Sale of Land Act 1962 (Vic), s 9AE(2)
1. Real Property
2. › Sale of land
3. › Sale of lots on unregistered plan of subdivision
4. › Rescission
5. › Waiver or election
6. › Whether purchaser can waive statutory right of rescission by subsequent conduct
7. › Whether conduct after unequivocal rescission can constitute election to affirm
8. › Sale of Land Act 1962 (Vic), ss 9AE(2), 9AF
1. Contract
2. › Rescission
3. › Election
4. › Whether party who has unequivocally exercised right to rescind can by subsequent conduct waive or elect not to exercise that right
5. › Irrevocability of election once made

Quick Take

A contractual special condition empowering a vendor to extend the plan registration date at its discretion does not 'specify another period' within the meaning of s 9AE(2) of the Sale of Land Act 1962 (Vic); the specified period must be fixed, definite and certain at the time the contract is entered into. Once a purchaser has unequivocally rescinded under s 9AE(2), subsequent conduct (such as engaging a building consultant for pre-settlement inspections) cannot constitute an election to affirm the contract. The question whether the statutory right of rescission under s 9AE(2) is incapable of being waived as a matter of law was left open.