Clause 28 is in these terms:
28.1 This clause applies only if some of the land is described as a lot in an unregistered plan.
28.2 The vendor must do everything reasonable to have the plan registered within 6 months after the contract date, with or without any minor alteration to the plan or any document to be lodged with the plan validly required or made under legislation .
28.3 If the plan is not registered within that time and in that manner -
28.3.1 the purchaser can rescind ; and
28.3.2 the vendor can rescind , but only if the vendor has complied with clause 28.2.
28.4 Either party can serve notice of the registration of the plan and every relevant lot and plan number.
28.5 The completion date becomes the later of the completion date and 21 days after service of the notice.
28.6 Clauses 28.2 and 28.3 apply to a plan that is to be registered before the plan is registered.
4 By 8 March 2002 the plan had not been registered; so far as appears it still has not been registered.
5 On 8 March 2002 the defendant by a letter between solicitors rescinded or purported to rescind the agreement in exercise of the right of rescission conferred by clause 28.3. Soon afterwards the plaintiff lodged a caveat which remains on the title register, and in May he commenced these proceedings. There is no doubt and there is no issue of the plaintiff's readiness, willingness and ability to perform the agreement at a proper time, or otherwise as to his entitlement to succeed, except for the issue raised on the pleadings about whether the defendant, upon the facts which had happened, was entitled to rescind or was prevented from rescinding by his own want of compliance with clause 28.2.
6 Clause 28.2 is the subject of an authoritative decision of the Court of Appeal in Wardy v Hardie [2002] NSWCA 215. Particularly significant for the present case are passages in the judgment of Mason P, with whom other members of the Court of Appeal concurred, at paragraphs 62, 63 and 64 from which it appears that compliance with clause 28.2 is a condition precedent to availability of the vendor's right to rescind.
7 This is not a case in which it is alleged that the vendor has broken any promise contained in clause 28.2 or has incurred any liability in respect of failure to have the plan registered; the present issue is rather simpler and is to the effect that the condition precedent to rescission was not fulfilled.
8 The timetable of six months for having the plan registered was, the evidence makes it very plain, very tight, but in my finding it was feasible. The contractual obligation was to the effect that the vendor was to act with urgency as if registration within this period was feasible, and to do all things reasonably necessary to achieve that outcome. Whether the outcome of registration within six months was actually achieved is not quite to the point, the obligation being to do everything reasonably necessary to have the plan so registered. The condition precedent does not include the element of actual success. Upon the evidence achieving registration within six months required consistently maintained determined action, including pre-planning so that each new stage in the project could begin as soon as a previous obstacle was passed.
9 Registration within six months was feasible with highly expeditious handling and good fortune but could easily have been defeated by events, even if the vendor had acted reasonably and complied in the fullest way with clause 28. Interventions by the weather, industrial events, the responses of Council, unavailability of contractors or of materials and the fortuitous influence of events, could prevent achievement of the six months objective, which was the best imaginable outcome. However, these circumstances do not much affect the condition precedent, with which the defendant is to comply, and he is to persist whether or not circumstances turn against him; the vendor has to contribute his doing everything necessary towards attaining the contemplated outcome. If he does so, he will have complied with the condition precedent even if the plan is not registered within time. If he does not do so he does not obtain the contractual right of rescission.
10 The defendant put the conduct of the subdivision in the hands of a Surveyor, Mr Kerfoot, who had significant relevant experience in the conduct of such business and was familiar with what was required and the kind of problems which could arise.
11 The defendant considered early in 2000 the possibility of a subdivision of this kind and spoke to Mr Kerfoot about it, and he actually gave Mr Kerfoot instructions in April 2001. This led to Mr Kerfoot giving him a letter dated 4 May 2001 which surveyed what was likely to be required and the expense likely to be incurred in the subdivision application. The letter showed that Mr Kerfoot was adept in this work, as he foresaw broadly all that arose in the application, to him a relatively familiar kind of application, and dealing with Fairfield Council with which he had had earlier experience. Council's attitude to a history of market gardening in subdivisions of this kind was known to Mr Kerfoot to be difficult. It was known to Mr Kerfoot that Council's concerns would relate to market gardening on the vacant land and not on the house site.
12 Mr Kerfoot's letter of 4 May 2001 referred, among many other things, to the need for the application to Council to be accompanied by a soil contamination report which he explained by enclosing a quotation from URS, a firm equipped to provide such a report.
13 In his review of conditions that Council would be likely to impose and of costs that might be incurred, Mr Kerfoot set out estimates of a number of expenses. The total of these costs was in the order of $8,500 together with an expected s 94 contribution of $15,372. The figure of approximately $8,500 included $780 for a soil contamination investigation, but Mr Kerfoot's letter and the enclosure indicate that there would be extra expenditure in the order of $2,500 if the site had been used for market gardening activities.
14 Mr Kerfoot obtained from the defendant and put before URS Australia Pty Ltd, Environmental Engineers, whose report he sought, a letter signed by the defendant on 4 May 2001 (erroneously shown as 2000) which refers to "87 Cecil Road, Cecil Park" and says "The purpose of this letter is to provide a brief history of the above site, of which I am the owner". That is to say, the letter appeared on its face to refer to the whole of Lot 87, which was to be subdivided into two lots. The history provided was: "The property was purchased by me in 1984, at which time it was used for grazing stock. Prior to this, the land was used for keeping race horses. In the period I have owned the property it has been used for the following activities: house and surrounding garden and grazing. No market gardening activities have been conducted on the site. The site is currently not being used for anything". There was some further information.
15 On a fair reading the letter says to the effect that neither lot had been used for market gardening. This took events on an unfortunate course.
16 URS's report of 18 July 2001 was prepared to the lower figure of $780 which Mr Kerfoot had indicated. It includes in its introduction:
We understand that this investigation was required so as to satisfy Fairfield City Council as to the suitability of the soils for the purpose of subdividing the property for residential development.
17 The identification in this report of the land to which it refers is not altogether easy to understand, as it contains several references to lot 87, which of course comprises the two proposed lots. In the introduction it refers to "Lot 872 DP31360", and this introduces some doubt as that deposited plan was the plan on which lot 87, not lots 871 and 872, appears. On the most careful reading, however, it should be understood that the lot reported on is proposed Lot 872; this appears from the site description in paragraph 3.1 which unmistakably describes Lot 872. Among other things, paragraph 3.1 says "no evidence of market gardening activities... was observed on the property."
18 The conclusion in paragraph 4 was:
Due to the limited work program, our comments should not be considered as covering all potential site contamination issues. The program was limited to addressing the potential for contamination of the immediate subdivision area given the past land use of the site. With respect to potential land use of the site, URS considers that portion of the site investigated suitable for residential subdivision.
19 The soil report was dated 18 July 2001, that is before the date of exchange of contracts and before the period to which the obligation in clause 28.2 to do everything reasonable related. The report was included as an enclosure in the application for development consent for subdivision which was submitted by Mr Kerfoot on 30 July 2001 within that period. The letter of 4 May 2001 from Mr Ravagnani addressed to the Council is referred to as an enclosure in the URS report of 18 July and was part of the material submitted to Council on 30 July.
20 In my finding, if the history of market gardening on the house site had been initially revealed, explained and carefully distinguished from the history of the vacant land, Council's response would probably have been much simpler than it was.
21 The defendant committed the management of the subdivision application wholly to Mr Kerfoot's firm. The defendant says in his affidavit:
In late May 2001 I instructed Britten & Associates Pty Ltd to proceed with the subdivision. I put the entire matter of subdivision in their hands and did my best to comply with any of their requests as I was and still am very ill suffering from cancer.
22 The defendant did not tell Mr Kerfoot of the 6 month contractual limit or the terms of clause 28, and did not give Mr Kerfoot any particular instruction for expedition. To my mind the evidence does not show signs that expedition or any particular time objective was part of Mr Kerfoot's proceedings; not surprisingly, as he was not made aware of any need for expedition.
23 To my mind the reasonable way to handle the situation before the defendant at the time of making the development application, having regard to Council's attitude to market gardening as known to Mr Kerfoot, was to approach the Council with a full and accurate account in the first place, to anticipate and provide answers to likely inquiries before the inquiries were made, and to establish and state the situation about Lot 871, the home lot and distinguish it from the situation of Lot 872.
24 The circumstance that the defendant had chosen the cheaper option for the URS report enhanced the desirability of making such a full approach in the first instance.
25 Council responded to the development application by its letter of 15 August 2003 to Mr Kerfoot's firm which referred to the proposed subdivision of lot 87 DP 31360 and said:
Council's environmental management branch has a ssessed the preliminary history review and advises as follows:
1. A review of Council's records and the submitted preliminary contamination assessment has found that potentially contaminating activities have been conducted on the site. Therefore, a detailed site investigation is to be conducted by URS for the property identified as proposed Lot 872 in the subdivision of lot 87DP31360. Number 271-203, Cecil Road, Cecil Park.
2. The amended report is to be prepared in accordance with the NSW Environment Protection Authorities "Guidelines for consultants reporting on contaminated sites", and the "Sampling design guidelines".