//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] VSC 33
Supreme Court of Victoria
2003-02-21
NETTLE, J
Original judgment source is linked above.
I certify that this and the 15 preceding pages are a true copy of the reasons for judgment of Nettle J of the Supreme Court of Victoria delivered on 21 February 2003.
__________________________
[2] Reliance was placed on Falconer v Wilson [1973] 2 NSWLR 131 at 145
[5] See Gair v Smith [1964] VicRp 107; [1964] VR 814 at 817; Legione v Hateley (1983) 152 CLR 401 at 418-9
[8] [1979] HCA 60; (1979) 141 CLR 594 at 607
[12] See Mehmet v Benson [1965] HCA 18; (1965) 113 CLR 295 at 303; Foran v Wight (19889) [1989] HCA 51; 168 CLR 385 at 457 - 8; cf. Tropical Traders v Goonan (1964) 111 CLR 52 - 4
[14] See also Poort v Development Underwriting (Victoria) Pty Ltd (No 2) [1977] VicRp 52; [1977] VR 454(FC) at 461
[17] In Thornton v Bassett, supra at 427, Pape J noted that "the notice required only one thing to be done, namely, the payment of $21,000"; and in Nund v McWaters , supra at 583, Brooking J noted that the notice was "concerned only with the simple default, the failure to pay $9817.36"
Burke and Riversdale Road Pty Ltd
Gemini Investments Pty Ltd [2003] VSC 33
"In the present case, the notice of 16 December 1976, speaks of rescission pursuant to the Transfer of Land Act and pursuant to "any other Provision " of the contract of sale. The notice of 23 February 1977 refers back to the earlier notice of 16 December . That earlier notice in fact states the consequences of rescission in a way that is not accurate, having regard to the reference to forfeiture of instalments, with respect to rescission for repudiation (or, for that matter, rescission pursuant to condition 6(2) of Table A or copyright condition 5(2). Moreover, the right conferred by condition 6(2) of Table A and copyright condition 5(2) on a vendor who retains the land to retain instalments pending the determination of damages is a right which he evidently does not enjoy if he discharges the contract in consequence of the purchaser's repudiation... So it may be said that the consequences of discharge for repudiation differ from those of rescission under either of the two conditions. Having regard to this, if, for example, a vendor purports to rescind under condition 5(2), can he then say that he has discharged the contract for repudiation?...[19] ... Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359... is itself sufficient to warrant and indeed require the conclusion in the present case that the notice dated 23 February 1977 was effective to rescind the contract of sale on the ground of the purchaser' repudiation, notwithstanding that the notice of 23 February referred back to the notice of 16 December, a notice which itself spoke of rescission pursuant to the Transfer of Land Act and "any other provision of the said contract and stated consequences of rescission for repudiation inaccurately, and notwithstanding that discharge for repudiation has results that are not the same in all respects as rescission founder copyright condition 5(2)..."[20].
(1931) 45 CLR 359
(1983) 152 CLR 406
(1983) 152 CLR 401
(1979) 141 CLR 594
(1965) 113 CLR 295
(1964) 111 CLR 52