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. Introduction
Vendor obligations and the common law
concept of caveat emptor.

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. 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. – 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. 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. 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. • 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. Remedies
• Rescission
• Return of deposit
• Right to damages for breach of contract
reserved

10. How the legislation works in
practice
Contaminated Land
Vitek v Estate Homes Pty Limited [2010] NSWSC
237

11. Flood related development
controls
Hijazi v Raptis (2002) 11 BPR 20,
487

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. • Kobol Holdings Pty Limited v Johnson [1987]
ANZ ConvR 137
Whether Land reserved for
acquisition by a public authority

14. Other risk to land
Mandalidis v Artline (1999) 47 NSWLR 568

15. Non disclosure of relevant
development control plan
The Verman v McLaughlin (1990) 70 LGRA

16. Argy v Blunts (1990) 94 ALR 719
Incorrect description of zoning of
the land

17. Building without approval
Marinkovic v Pat McGrath Engineering Pty
Limited (2004) 61 NSWLR 150

18. Incorrect description of vendor’s
title
Wongala Holdings Pty Limited v Beynon & Ors
(1997) 8 BPR 15, 765

19. Conclusion