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When Conveyanes Go Wrong
– Purchaser’s Remedies for
Vendor Breaches
Lecture by:
Laina Chan, Barrister
Nine Wentworth Chamb...
Introduction
Vendor obligations and the common law
concept of caveat emptor.
Megarry and Wade – The Law of Real
Property (5th edition) at 611-612
“A good title means a title free
from encumbrances. T...
Flight v Booth
“is in a material and substantial
point, so far affecting the subject
matter of the contract that it may
re...
– Section 18 of the Australian
Consumer Law states that ‘a person
must not, in trade or commerce,
engage in conduct that i...
Demagogue Pty Ltd v Ramensky
(1992) 39 FCR 31
“Silence is to be assessed as a circumstance like any other. To
say this is ...
S55A(2) of the Conveyancing Act provides:
‘A vendor under a contract for the sale of land:
(a) shall, before the contract ...
• Prescribed documents – Schedule 1
• Prescribed warranties – Schedule 3 of the
Conveyancing (Sale of Land)Regulation 2010...
Remedies
• Rescission
• Return of deposit
• Right to damages for breach of contract
reserved
How the legislation works in
practice
Contaminated Land
Vitek v Estate Homes Pty Limited [2010] NSWSC
237
Flood related development
controls
Hijazi v Raptis (2002) 11 BPR 20,
487
CH Real Estate Pty Limited (trading as Raine &
Horne Commercial Penrith) v Jain Ran Pty Limited
(2010) 14 BPR 27, 361
Road...
• Kobol Holdings Pty Limited v Johnson [1987]
ANZ ConvR 137
Whether Land reserved for
acquisition by a public authority
Other risk to land
Mandalidis v Artline (1999) 47 NSWLR 568
Non disclosure of relevant
development control plan
The Verman v McLaughlin (1990) 70 LGRA
Argy v Blunts (1990) 94 ALR 719
Incorrect description of zoning of
the land
Building without approval
Marinkovic v Pat McGrath Engineering Pty
Limited (2004) 61 NSWLR 150
Incorrect description of vendor’s
title
Wongala Holdings Pty Limited v Beynon & Ors
(1997) 8 BPR 15, 765
Conclusion
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When Conveyances Go Wrong - Purchaser’s Remedies for Vendor Breaches

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When Conveyances Go Wrong - Purchaser’s Remedies for Vendor Breaches

  1. 1. When Conveyanes Go Wrong – Purchaser’s Remedies for Vendor Breaches Lecture by: Laina Chan, Barrister Nine Wentworth Chambers, Sydney www.ninewentworth.com.au Telephone: (02) 8815 9211 For: Television Education Network
  2. 2. Introduction Vendor obligations and the common law concept of caveat emptor.
  3. 3. Megarry and Wade – The Law of Real Property (5th edition) at 611-612 “A good title means a title free from encumbrances. The term 'encumbrances' covers all subsisting third party rights such as leases, rentcharges, mortgages, easements and restrictive covenants. It also includes statutory liabilities, if they are not merely potential or imposed on all property generally.”
  4. 4. Flight v Booth “is in a material and substantial point, so far affecting the subject matter of the contract that it may reasonably be supposed, that, but for such misdescription, the purchaser might never have entered into the contract at all.”
  5. 5. – Section 18 of the Australian Consumer Law states that ‘a person must not, in trade or commerce, engage in conduct that is misleading and deceptive or likely to mislead or deceive’. – The terms “misleading” or “deceptive” are not defined in the Act. Constraints placed on vendors
  6. 6. Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 “Silence is to be assessed as a circumstance like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive. To speak of "mere silence" or of a duty of disclosure can divert attention from that primary question. Although "mere silence" is a convenient way of describing some fact situations, there is in truth no such thing as "mere silence" because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed.”
  7. 7. S55A(2) of the Conveyancing Act provides: ‘A vendor under a contract for the sale of land: (a) shall, before the contract is signed by or on behalf of the purchaser, attach to the contract such documents, or copies of such documents, as may be prescribed, and (b)shall be deemed to have included in the contract such terms, conditions and warranties as may be prescribed.’ Legislative Constraints
  8. 8. • Prescribed documents – Schedule 1 • Prescribed warranties – Schedule 3 of the Conveyancing (Sale of Land)Regulation 2010 • Implied warranties Conveyancing (Sale of Land) Regulations 2010
  9. 9. Remedies • Rescission • Return of deposit • Right to damages for breach of contract reserved
  10. 10. How the legislation works in practice Contaminated Land Vitek v Estate Homes Pty Limited [2010] NSWSC 237
  11. 11. Flood related development controls Hijazi v Raptis (2002) 11 BPR 20, 487
  12. 12. CH Real Estate Pty Limited (trading as Raine & Horne Commercial Penrith) v Jain Ran Pty Limited (2010) 14 BPR 27, 361 Road Widening Timanu Pty Limited v Clurstock Pty Limited (1988) 15 NSWLR 338
  13. 13. • Kobol Holdings Pty Limited v Johnson [1987] ANZ ConvR 137 Whether Land reserved for acquisition by a public authority
  14. 14. Other risk to land Mandalidis v Artline (1999) 47 NSWLR 568
  15. 15. Non disclosure of relevant development control plan The Verman v McLaughlin (1990) 70 LGRA
  16. 16. Argy v Blunts (1990) 94 ALR 719 Incorrect description of zoning of the land
  17. 17. Building without approval Marinkovic v Pat McGrath Engineering Pty Limited (2004) 61 NSWLR 150
  18. 18. Incorrect description of vendor’s title Wongala Holdings Pty Limited v Beynon & Ors (1997) 8 BPR 15, 765
  19. 19. Conclusion

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