Chong v Tasman 61 BH Pty Ltd [2026] NSWSC 837 | Case summary | Zoe

NSWNSWSC

Chong v Tasman 61 BH Pty Ltd

[2026] NSWSC 837

Supreme Court of NSW|2026-07-15|Before: Richmond J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-07-15

Before

Richmond J

Catchwords

LAND LAW — Conveyancing — Contract for sale — Off-the-plan purchase of strata lot including car parking space — Whether removal of car parking space in registered strata plan a breach by vendor — Whether lodgment of caveat by purchaser a breach or repudiation entitling vendor to terminate — Specific performance where restrictive use condition on utility lot — Relief against forfeiture

Source

Original judgment source is linked above.

Catchwords

LAND LAW — Conveyancing — Contract for sale — Off-the-plan purchase of strata lot including car parking space — Whether removal of car parking space in registered strata plan a breach by vendor — Whether lodgment of caveat by purchaser a breach or repudiation entitling vendor to terminate — Specific performance where restrictive use condition on utility lot — Relief against forfeiture

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Chong v Tasman 61 BH Pty Ltd [2026] NSWSC 837

Hearing dates: 23 June 2026

Date of orders: 15 July 2026

Decision date: 15 July 2026

Jurisdiction: Equity

Before: Richmond J

Decision: Orders for specific performance made: see paragraph [124].

Catchwords: LAND LAW — Conveyancing — Contract for sale — Off-the-plan purchase of strata lot including car parking space — Whether removal of car parking space in registered strata plan a breach by vendor — Whether lodgment of caveat by purchaser a breach or repudiation entitling vendor to terminate — Specific performance where restrictive use condition on utility lot — Relief against forfeiture

On 26 March 2021, the contract for sale was entered into between the first plaintiff, May Shuan Chin Chong, and second plaintiff, Houzhong Yu, as purchasers, and the defendant, Tasman 61 BH Pty Ltd, as vendor (the Contract). It took the form of the Law Society/Real Estate Institute standard form (2019 Edition), as amended and supplemented by a number of special conditions.
On the front page of the Contract the land the subject of the Contract is described as ‘Lot 20, 61 Windsor Road, Norwest NSW 2153’ and ‘Unregistered Plan: Lot 20 in the Draft Strata Plan which is part of Lot 1 in Deposited Plan 566580’ (Lot 20), and the improvements are relevantly noted as follows:
The draft strata plan forming Annexure 3 to the Contract describes lot 20 as comprising a lot with a total area of 273 m² including a separate car space located a short distance from the townhouse with an area of 13m².
The purchase price was $1,160,000, with a deposit of $116,000 (d****eposit). The plaintiffs paid the deposit on 18 June 2021, in accordance with the Contract. The plaintiffs paid stamp duty on the Contract of $48,825 by the due date for payment.
By special condition 44.1, the completion date was to be the later of: (a) 42 days after the date of the Contract, (b) 14 days after the vendor serves a copy of the Occupation Certificate on the purchaser or (c) 21 days after the vendor serves a written notice on the purchaser informing that the strata plan has been registered.
On 6 June 2023, pursuant to special condition 45 of the Contract, the defendant extended the ‘sunset date’ under the Contract from 31 December 2023 to 31 December 2024, by a notice stating that completion of the construction works had been delayed by causes beyond the control of the vendor, including delays due to inclement weather and ‘anything that is beyond the vendor’s control’. The significance of the sunset date appears to be that either party would be entitled, in certain circumstances, to rescind the Contract under special condition 44.2 read with cl 19 of the standard form at any time after the sunset date and before the date for completion arising under cl 44.1. As I understood the parties’ submissions, nothing turns on the extension of the sunset date, and this is presumably because neither party elected to rescind under cl 44.2. Had the defendant done so, the plaintiffs would have been entitled to the return of the deposit.
On 27 March 2025, the defendant’s solicitor, Accuro Maxwell (Accuro), sent an email to the plaintiffs’ conveyancers, R & R Lawyers (R & R) stating:

The plaintiff submitted that special condition 46 does not permit the defendant to remove the car space from Lot 20 with the consequence that this was a breach of contract, for three reasons:
Whether the defendant was permitted by special condition 46 to remove the car space from Lot 20 is a question of construction of the Contract. Where there are general provisions in a contract and specific provisions, the general provisions will give way to the specific provisions under the principle generalia specialibus non derogant: Chapmans Ltd v Australian Stock Exchange Ltd (1996) 67 FCR 402 at 411. In the present case, special condition 42 is the general provision and special condition 72 is the more specific provision applicable to a car space, and the former must give way to the latter or be read down so that they can operate harmoniously together. However, special condition 72 did not authorise the removal of the car space from Lot 20 because it merely permits the ‘change or modification or alteration to’, the car space and not its entire removal.
Clause 16.3 of the Contract provides that on completion the defendant must cause the legal title to the ‘property’ to pass to the plaintiff. The term ‘property’ is defined to mean ‘the land, the improvements, all fixtures and the inclusions, but not the exclusions’. In the Contract, ‘the improvements’ are expressed as ‘townhouse’, ‘garage’ and ‘carspace’. Hence, even if special conditions 46 and 72 permitted the defendant to eliminate a car space entirely, cl 16.3 would still require the defendant to transfer legal title to the car space to the plaintiffs on completion.
On the defendant’s construction of special condition 46, the defendant would have the ‘absolute discretion’ to exclude entire rooms (e.g. the bathroom and toilet) from the plaintiff’s lot or renumber the lot so that the plaintiff’s lot comprised entirely of car spaces and no townhouse, which would be an absurd result in plainly not the objective intention of the parties.
The defendant submitted that there was no breach of contract by the non-inclusion of the car space in Lot 20 for essentially the following reasons:
The generalia specialibus non derogant principle will not apply where each of the provisions can be said to be specific, rather than one general and one specific: Ilkerler Otomotiv v Perkins Engines Co Ltd [2017] EWCA Civ 183; [2017] 4 WLR 144 at [14]. This is not a case where there is a general provision which would entirely negate the special provision unless the special provision is to prevail; rather, there are two distinct powers, each of which is given to the vendor and each of which is capable of being exercised according to its own terms and in its own field.
Further, special conditions 46 and 72 operate harmoniously together because, if a car space is eliminated under special condition 46, the precondition to the operation of special condition 72 (‘if a car space … is included in this contract’) is not satisfied and hence that special edition does not apply.
Contrary to the plaintiff’s submission, cl 16.3 does not require the defendant to transfer legal title to the car space to the plaintiffs on completion because cl 16.3 begins with the word ‘normally’ and hence gives way to special condition 46 (as confirmed by special condition 34.6). Further, the definition of ‘property’ in special condition 33 (‘the apartment sold under this contract…’) gives that word an ambulatory meaning for the purposes of cl 16.3 so that it picks up the various provisions for altering the lot and the development in the special conditions (including special condition 46).

In working out which provision is the more general or specific, it is necessary to bear in mind the object of the contract and to adopt an objective and purposive analysis, rather than one which approaches the general/specific distinction in purely linguistic terms: Banksia Securities at [45], [51].
In my view, there is a conflict between special conditions 46 and 72 which is to be resolved on the basis that special condition 46 is the general provision and special condition 72 is the specific provision, and the former must give way in order for the two provisions to operate harmoniously together.
The starting point is to identify what each provision is directed at. Special condition 46.1 permits the vendor to make, for the purpose of the development, ‘any alteration, variation or modification’ to the draft strata plan which the vendor considers to be necessary or desirable, including altering (a) the total number or numbering of lots, (b) the measurement, dimensions, storey or area of any lot, (c) the lot entitlement of any lot, or (d) the internal or external layout or configuration of any lot.
The draft strata plan shows the location of each of the 32 lots in the development (described as two and three storey townhouses) and their size (including the area of each level), together with the location and size of the areas marked as common property, disabled parking, car space, shared zone, courtyard, enclosed area under stairs, visitor parking, patio and balcony. When a lot includes a car space, this is shown on the draft strata plan (by marking a particular area as ‘CS’ and showing the lot number and size of the area). The draft strata plan does not indicate whether a particular lot has a garage, and that is a matter dealt with by the Contract itself (through including it as an ‘improvement’). Nor does it contain the unit entitlement of each lot.
Turning now to special condition 72, it only operates where ‘a car space or storage [room] is included in this contract*’*. In my view, the words ‘is included in this contract’, direct attention to the description on the first page of the Contract of the ‘improvements’ forming party of the property agreed to be sold, which contains boxes for both ‘carspace’ and ‘storage space’. This is because those words are in the present tense and therefore operate at the date the Contract is entered into. As an ‘x’ appears in the box for ‘carspace’ (but not ‘storage space’), special condition 72 applies in respect of the car space included in the Contract as an improvement and shown in the draft strata plan as part of Lot 20. What special condition 72 then does is permit the vendor ‘to make a change or modification or alteration to [the] car space…including but not limited to its numbering, area, location etc’ (and precludes the purchaser from making any claim for such action).
Both provisions can deal with the same subject matter. As the car space included in Lot 20 is designated on the draft strata plan, the power conferred on the vendor by special condition 46.1 to make any alteration, variation or modification to the draft strata plan would include a power to make an alteration of the draft strata plan relating to the car space. This would, if made, be a change or modification or alteration of the car space within special condition 72. Special condition 46.1 is the more general provision because it permits changes, modifications or alterations to the draft strata plan generally, whereas special condition 72 deals with those relating to the car space only.
It is necessary to apply the generalia specialibus non derogant principle to give special condition 72 precedence over special condition 46.1 because otherwise special condition 72 would be nullified. This cannot have been the parties’ intention given that special condition 72 reflects an important part of the transaction which is the making of a change to part of the property agreed to be sold.
The importance of special condition 72 is reflected in the limitation to its scope arising from the words ‘a change or modification or alteration to [the] car space’. The ordinary meaning, as a verb, of ‘change’ is ‘to make different; alter in condition, appearance’; of ‘alter’ is ‘to make different in some particular; modify’; and of ‘modify’ is ‘to change somewhat the form or qualities of; alter somewhat’: The Macquarie Dictionary, 3rd ed (1997). The words ‘alter’ and ‘modify’ each contemplate that the thing being altered or modified in some way continues to exist: Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 551 (‘alteration’); Zagarella v Roads Corporation (Vic) (1990) 13 MVR 334 at 337 (‘alter’); Pearce v Hall (1989) 52 SASR 568 at 570 (‘modify’). In my view, the same can be said of the word ‘change’: see R (Save Britain*’*s Heritage) v Secretary of State for Communities and Local Government [2010] EWHC 979 (Admin) at [23]. This view is supported by the examples given in special condition 72 which, although expressed to be without limitation, relate only to the numbering, area and location of the car space.
Accordingly, what the specific provision in relation to the car space (special condition 72) contemplates is that the vendor can make a change, alteration or modification to the car space included in the Contract but not remove it entirely. If special condition 46.1 was to permit a change, alteration or modification to the draft strata plan which removed the car space entirely, that would enable the vendor to remove the car space from the property agreed to be sold without the purchaser necessarily having any right to rescind or other claim against the vendor because the car space alone is less than 5% of the area of Lot 20 as shown in the draft strata plan, so that special condition 46.2 would not be engaged. Such a construction of special condition 46.1 would nullify special condition 72. Further, it would be an odd result if special condition 46.1 permitted the removal of part of the property agreed to be sold without any recourse for the purchaser.
Similarly, if special condition 46.1 and special condition 72 both permit a change, alteration or modification to the draft strata plan which reduced the size of Lot 20, including a reduction to the size of the car space, there would be a conflict between them because, under special condition 46.2, the purchaser would have a right to rescind the Contract if the total change to the area of Lot 20 (including the car space) was more than 5%, whereas special condition 72 would deny that right in respect of the change to the area of the car space.
In my view, special condition 46.1 was not intended to apply to the specific topic dealt with by special condition 72, particularly given the central importance of special condition 72 (being to address a change/alteration/modification to part of the property agreed to be sold).
For these reasons, special condition 46.1 does not apply to permit a change, alteration or modification of the draft strata plan to remove the car space included in Lot 20. And as concluded at [70] above, nor does special condition 72 permit the vendor to amend the draft strata plan in that way. It follows that the defendant was in breach of contract by registering the Strata Plan in a form which failed to provide the car space included in Lot 20 of the draft strata plan.
In addition, the defendant was in breach of the Contract in another respect. The giving of notice to the purchasers in a timely fashion of the registration of the Strata Plan and of the issuance of the occupancy certificate for the development was part of the framework for the determination of the completion date under special condition 44.1. While the Contract does not expressly require the vendor to give such notice to the purchasers, a Court will imply a term that the vendor will give such notice within a reasonable time because that is necessary to give business efficacy to a contract in accordance with the accepted principles stated in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282–283; PNC Lifestyle Investments Pty Ltd v REW08 Projects Pty Ltd (No 2) [2017] NSWSC 993 at [46].
In my view, a term should be implied in the Contract that the defendant was required to provide notice of the registration of the Strata Plan and the issuance of the occupancy certificate within a reasonable time after the later of those events occurring. In all the circumstances, seven days was a reasonable time for the giving of that notice. It is apparent that the defendant gave such a notice to other purchasers but not to the plaintiffs (see [19] above).
Accordingly, the defendant was also in breach of the Contract by 13 August 2025 due to its failure to provide notice of the registration of the Strata Plan and the issuance of the occupancy certificate.

The question whether a term in a contract is a condition or a warranty, i.e., an essential or a non-essential promise, depends upon the intention of the parties as appearing in or from the contract. The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promisor: ... If the innocent party would not have entered into the contract unless assured of a strict and literal performance of the promise, he may in general treat himself as discharged upon any breach of the promise, however slight. If he contracted in reliance upon a substantial performance of the promise, any substantial breach will ordinarily justify a discharge. In some cases it is expressly provided that a particular promise is essential to the contract, e.g., by a stipulation that it is the basis or of the essence of the contract… but in the absence of express provision the question is one of construction for the Court, when once the terms of contract have been ascertained … In general, Courts of common law have been more ready than Courts of Equity to regard promises as essential. This is in part due to the fact that Courts of common law are in the main concerned with ordinary commercial contracts in which it is common to find provisions which are intended to be strictly and literally performed. It is now provided by s13 of the Conveyancing Act 1919 (taken from the Judicature Act, 1873, 36 and 37 Victoria, Chap 66, s25 (7)) that stipulations in contracts, as to time or otherwise, which would not before the commencement of the Act have been deemed to be or to have become of the essence of such contracts in a Court of Equity shall receive in all Courts the same construction and effect as they would have heretofore received in such Court. This serves to make equitable liberality of construction supersede common law strictness, so far as is consistent with apparent intention, in fields where equity and common law overlap; but it does not affect the principle that effect must be given to the apparent intention of the parties as disclosed in the contract...

In approving these observations in Koompahtoo at [47]–[48], the plurality (Gleeson CJ, Gummow, Heydon and Crennan JJ) noted that ‘what Jordan CJ said as to substantial performance, and substantial breach, is now to be read in the light of later developments in the law’. In other words, the question is whether the term is of such a nature that the parties would not have entered into the contract unless the term was to be strictly complied with, for that is the effect of the conclusion that the term is a condition.
Importantly, the question whether the term is a condition (or alternatively to be classified as a warranty or an intermediate term) is one of construction of the contract as a whole, and absent express agreement in the contract that the term is a condition, a variety of matters may be taken into account including whether damages would be an adequate remedy for breach: JW Carter, Carter***’***s Breach of Contract (3rd ed, 2024) at [5‑14].
If the relevant term is not a condition, it will be classified as either a warranty or an intermediate term, which again is a matter of construction of the contract. The term will be an intermediate term unless it is clear that it is intended to be a warranty: Cromarty Resources Pty Ltd v Thalanga Copper Mines Pty Ltd [2021] NSWCA 284 at [44]. A warranty is a term no breach of which entitles the promisee to terminate performance of the contract: Carter*’*s Breach of Contract at [4‑13].
Where a party to a contract breaches a term which stipulates a time for the performance of an obligation under the contract and that term is not a condition, the promisee, if not itself in default, may give a notice to perform to the promisor to allow further time for the performance of the obligation and to make performance within that time essential: Louinder v Leis (1982) 149 CLR 509 at 526–527 per Mason J; [1982] HCA 28. In Gustin v Taajamba Pty Ltd (1988) 4 BPR 9373 at 9376, Mahoney JA, after discussing the principles stated in Louinder v Leis, summarised the position as follows:

This ‘notice to perform’ procedure is contemplated by cl 9.1 of the Contract set out earlier at [78]. However, it is clear the notice to perform procedure is only available to a party who is not in breach of the contract: McNally v Waitzer [1981] 1 NSWLR 294 at 302–303; Louinder v Leis at 523 per Mason J and 529 per Deane J; Carter*’*s Breach of Contract at [5‑57].
In the case of an intermediate term, there are various ways of putting the test to determine whether a breach is sufficiently serious to justify termination of the contract, but it is common to apply that stated by Diplock LJ in Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, which is that the breach must give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract: Koompahtoo at [49]. The adequacy of damages as a remedy for the breach is relevant to that question, and a judgment as to the seriousness of the breach and the adequacy of damages as a remedy is made after considering the benefit to which the promisee is entitled under the contract: Koompahtoo at [54]–[55].
As to repudiation, the test to be applied to determine whether the promisor has evinced a lack of readiness, willingness or ability to perform is whether the conduct of the promisor is such as to convey to a reasonable person, in the situation of the promisee, renunciation either of the contract as a whole or of a fundamental obligation under it: Koompahtoo at [44]. The usual form of repudiation is a refusal to perform a contract in accordance with its terms, but it may also occur where the promisor indicates before the date for performance of its obligation that it will not on that date be ready, willing or able to perform (referred to as ‘anticipatory breach of contract’): Carter*’*s Breach of Contract at [7‑08]. A promisee may then validly elect to terminate the performance of the contract.

The first question is whether special condition 55 is a condition. In my view it is not, because when the terms of that special condition are considered in light of the contract as a whole, they are not of such a nature that the parties would not have entered into the Contract unless the term was to be strictly complied with. My reasons are as follows:
The use of the words ‘is not entitled to and must not lodge’ in the clause does not, of itself, indicate an intention that the clause is a condition rather than an intermediate term. Of more significance is that a number of the special conditions in the Contract expressly state that they are in essential terms, the breach of which would entitle the vendor to terminate the Contract: see special conditions 42.4, 42.8, 43.3, 43.6, 44.4, 59.4 and 65.3. The absence of such a statement in special condition 55 is a strong indication that it was not intended to be essential. It was not suggested, correctly, that merely describing special condition 55 in the heading as a ‘condition’ is sufficient to constitute an express agreement that it is a condition at law: Carter*’*s Breach of Contract at [5‑06].
If the clause is breached, the vendor has a readily available procedure to have the caveat removed by applying to the Registrar General for the issue of a lapsing notice under s 74J of the Real Property Act 1900 (NSW) or by making an application to this Court for an injunction that the caveat be withdrawn. While the existence of a clause such as special condition 55 would not disentitle the holder of an equitable interest in the land from lodging a caveat, it would be a discretionary consideration which would be taken into account by the Court in considering whether to extend the caveat or issue an injunction, in order to permit legitimate bona fide transactions by the registered proprietor: Australian Property & Management Pty Ltd v Devefi Pty Ltd (1997) 7 BPR 15,255 at 15,257; Betlehem v Keytown Constructions Pty Ltd [2007] WASC 38 at [19].
At the very least, the vendor would be entitled to damages for breach of contract. There is nothing in the evidence to suggest that damages for breach of the clause would not be an adequate remedy in the present case.
While it may be accepted that special condition 55 was a standard provision in all the contracts for this development and that the vendor proposed to borrow to fund the development which would require the giving of registered mortgages over the land, it is not self-evident given what is said at (1)–(3) above, that the presence of a caveat lodged by a purchaser to protect that purchaser’s interest in the land under its contract would be sufficiently prejudicial to the vendor such that the parties would not have entered into the contract unless the term was strictly complied with. Indeed, the matters in (1)–(3) suggest the contrary.
For these reasons, special condition 55 is an intermediate term. I accept that it is arguable that by lodging the Caveat the plaintiffs breached special condition 55. However, that breach was not sufficiently serious to justify the purported termination of the Contract by the defendant. It did not deprive the defendant of substantially the whole benefit which it was intended that it should obtain from the Contract, particularly as damages would be an adequate remedy and the plaintiffs were (and are) ready and willing to perform the Contract and have consistently maintained that they will do so.
The defendant submitted that it was entitled to issue the Notice to Perform to make time of the essence in the performance by the plaintiffs of the obligation to comply with special condition 55, and that this permitted the issue of the Notice of Termination when the Caveat was not withdrawn within the time specified in the Notice to Perform. I reject this submission because, even if special condition 55 involves a time stipulation of the kind which allows the vendor to invoke the notice to perform procedure, at the time the Notice to Perform was given, the defendant was in breach of the Contract in either of the two respects identified at [73]–[76] above and that renders both the Notice to Perform and the Notice of Termination invalid.
Nor can it be said that Notice of Termination was justified on the basis that the lodgment of the Caveat was a repudiation of the Contract by the plaintiffs. In my view, the plaintiffs have not, by lodging the Caveat or other conduct, evinced a lack of readiness, willingness or ability to perform their obligations under the Contract. To the contrary, the plaintiffs have throughout indicated that they wish to complete the Contract in accordance with its terms.

For the reasons given above, the Contract remains on foot, and while the defendant’s purported termination of the Contract is a repudiation, the plaintiffs have not accepted that repudiation. They seek specific performance of the Contract in respect of Lots 20 and 34 in the registered Strata Plan, or alternatively, if the plaintiffs are not entitled to the car space for whatever reason, then specific performance of the Contract in respect of Lot 20 and damages for the absence of the car space.
Specific performance is an equitable remedy requiring a contracting party to perform that party’s obligations under the contract according to its terms: JD Heydon, MJ Lemming and PG Turner, Meagher, Gummow & Lehane*’*s Equity Doctrines & Remedies (5th ed, 2015, LexisNexis Butterworths) at [20‑005]. What it would require in the present case is for the defendant to perform its obligation to transfer the property agreed to be sold under the Contract in exchange for payment of the balance of the purchase price. It is well-established that specific performance is available in relation to contracts for the sale of land where damages are regarded as an inadequate remedy for a purchaser if the vendor fails to complete.
The property agreed to be sold under the Contract is the ‘property’ which, for this purpose, has the meaning in cl 1 of ‘the land, the improvements, all fixtures and the inclusions, but not the exclusions’. The ‘land’ is Lot 20 in the draft strata plan annexed to the Contract and the improvements comprise a townhouse, garage and car space. Lot 20 in the draft strata plan identifies the property as including a particular car space, consistently with the definition of ‘improvements’ on the first page. In my view, the property agreed to be sold is not Lot 20 in the Strata Plan as registered but rather is the property identified in the Contract by reference to Lot 20 in the draft strata plan (subject to valid alterations, modifications or changes to the draft strata plan by the vendor), and this includes the car space that now forms Lot 34 in the Strata Plan as registered. Lot 20 in the Strata Plan as registered contains the townhouse and garage. Accordingly, the vendor’s obligation on completion is to deliver a transfer of Lots 20 and 34 in the Strata Plan in exchange for the balance of the purchase price.
A question arises as to the significance of Lot 34 being a ‘utility lot’.
Section 4(1) of the Strata Schemes Development Act 2015 (NSW) (the SSD Act) defines ‘utility lot’ by reference to the meaning it has in the Strata Schemes Management Act 2015 (NSW), which in turn provides at s 4(1) that:

On the evidence before the Court, the restrictive use condition attaching to Lot 34 is simply that it must only be used by an owner or occupier of a lot in the Strata Plan. This would not prevent its transfer to the plaintiffs. The defendant did not submit to the contrary and I note that, while the development approval identifying that Lot 34 is subject to the restrictive use condition is not in evidence, it is appropriate to draw these inferences on the basis of the evidence before the Court because it was in the power of the defendant (not the plaintiff) to have produced the relevant development approval and it chose not to do so: Blatch v Archer (1774) 1 Cowp 63 at 65; (1774) 98 ER 969.
If specific performance is ordered of the Contract on terms requiring the defendant to transfer Lot 34 to the plaintiffs, it would only be capable of being used by them or an occupier of Lot 20, and it could not be sold or leased by them to a person who is not an owner or occupier of a lot in the Strata Plan. However, no objection was taken by the plaintiffs to that restriction.
The only basis put forward by the defendant as a bar to specific performance in the event that the Contract has not been terminated is that, in the Defence, it denies that the plaintiffs are and were at all material times ready and willing to perform the Contract. I note that the defendant did not submit that an order for specific performance should be refused on the basis that it would be highly unreasonable: cf Gall v Mitchell (1924) 35 CLR 222 at 228; [1924] HCA 48.
The plaintiffs gave evidence that they have had a conditional approval for a home loan from National Australia Bank to purchase the property since April 2025 (which is prior to registration of the Strata Plan). The most recent approval was issued by the Bank on 9 June 2026 and is for a loan of $1,350,000. The conditions which each of these approvals are subject to are of the usual kind for a home loan of this nature. Their evidence was not challenged. I note also that the valuation evidence before the court indicates that the property has a value considerably greater than the purchase price and that the plaintiffs have at all times in their correspondence with the defendant maintained their intention to purchase the property (as described in the Contract). I am satisfied that the plaintiffs are ready and willing to perform the Contract.
The Court will therefore make an order for specific performance of the Contract on terms which require the defendant to transfer Lots 20 and 34 in the Strata Plan to the plaintiffs.
If I had not accepted the plaintiffs’ primary submission and instead concluded that they are entitled to specific performance of the Contract on terms requiring the transfer of Lot 20 only, I would have accepted the plaintiffs’ alternative submission that they were entitled to the transfer of Lot 20 together with compensation for the failure to transfer Lot 34: see cl 6.1 of the standard form, and P Butt, The Standard Contract for Sale of Land in New South Wales (2nd ed, 1998), [6.56]–[6.58]. I would have assessed damages at the midpoint of the two valuations, being $57,500.

The plaintiffs submitted that the Court should exercise the discretion under s 55(2A) because it would be unjust for the defendant to rely on any strict legal right for two reasons. First, termination of the Contract came about because the plaintiffs lodged the Caveat but that was a direct result of the defendant’s own conduct in registering the Strata Plan without the car space originally allotted to Lot 20. Had the defendant done so, the Notice of Termination would not have come into existence. Second, the defendant has profited from the taking the car space out of the hands of the plaintiffs.
The defendant submitted that the plaintiffs had not made out a case for relief under s 55(2A) because it had failed to show that it would be unjust and inequitable for the defendant to retain the deposit. First, the plaintiffs cannot blame the defendant for their breach of contract, as it was the result of their own decision to lodge the Caveat: cf Lee v Lee [2022] NSWSC 181 at [25]. Second, the defendant had not profited by taking the car space for, on the hypothesis on which the claim under s 55(2A) is made, the plaintiffs are not entitled to specific performance and the Contract has been validly terminated.
Had this issue arisen because the defendant had validly terminated the Contract for breach of special condition 55, I would have found that the plaintiffs were entitled to repayment of the deposit under s 55(2A). This is because: (a) the breach of special condition 55 was clearly a response by the plaintiffs to the failure of the defendant to register a strata plan which would transfer to the plaintiffs the property agreed to be sold under the Contract due to the absence of the car space; (b) the defendant consistently failed to engage with the plaintiffs as to the reason for excluding the car space from Lot 20 in the Strata Plan as registered, or with the invitation made on 26 May 2025 for reasonable compensation for the removal of the car space; and (c) based on the valuation evidence, the defendant would be able to sell Lots 20 and 34 for between $290,000 and $340,000 more than the purchase price under the Contract which would be a very significant benefit to the defendant arising from termination. While the Court will not lightly be moved to order a return of the deposit paid as an earnest of performance, in my view, these matters taken together would have been sufficient to invoke the operation of s 55(2A) in the present case if the Contract had been terminated.

Chong v Tasman 61 BH Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Introduction

Background

Relevant provisions of the Contract

Issues for determination

Evidence

Whether removal of the car space was a breach of the Contract

Submissions

Consideration

Whether the defendant was entitled to terminate the Contract

Submissions

Relevant principles

Consideration

Relief to which the plaintiffs are entitled

Relief against forfeiture

Conclusion

Parties

Legislation Cited (7)

Cases Cited (35)