In the recent case of Anastasia Kalathas v 89 Ebley Street Pty Limited [2021] NSWSC 490 considered issues of rescission and repudiation in a contract for the sale of a property. 

In 2017, the parties entered a contract for sale of a commercial property which was yet to be built. The Contract had included a car space for the commercial premises, but the February Strata Plan did not include the car space, so the Purchaser sought to rescind the Contract. The Vendor registered the strata plan in February 2020 and issued a Completion Notice, an Occupation Certificate and a Notice to Complete – although it was found during the proceedings that at that time, the Vendor was not actually in a position to complete the Contract because there was no car space on the registered plan allocated to the Purchaser’s lot. 

The Purchaser was entitled to draw the conclusion that the Vendor was not proposing to convey a car space. As the car space was an essential term of the contract, the purchaser was entitled to terminate the Contract and entitled to return of the deposit. 

Moreover, the fact that the Vendor had registered a new strata plan and was later in a position to complete after the Purchaser had commenced proceedings did not assist them in their defence. The Court held that the Vendor had repudiated the contract and the Purchaser was thus entitled to the return of her deposit and an order that the Vendor pay her costs. 

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