Which case won?

The case for the purchaser
  • There was significantly more additional rubbish on the property at the date of settlement than at the date of contract and before-and-after photographic evidence supports this claim.
  • In their own evidence, the vendors concede that items previously stored away in a relatively ordered fashion had been taken out and placed on the floor to create a mess.
  • The property had become a dumping ground, with items abandoned and scattered all over the floor right throughout the residence.
  • This rendered large parts of the residence unusable and therefore amounted to damage to the property.
  • It will cost me considerable money to tidy up the residence and remove this additional rubbish and it is just and equitable in the circumstances that I be compensated.
The case for the vendor
  • We accept that a large amount of rubbish was left on the property and that items in the attic, storage areas and cupboards had been taken out and left strewn on the floor.
  • However, while items were moved around, the total volume of rubbish did not change between the date of contract and the date of completion. A closer examination of the photographic evidence supports this.
  • Indeed, after the auction we had organised for the removal of vegetation and rubbish that had accumulated in the driveway at a cost to us of $2,600.
  • There was no damage to the property within the meaning of the Conveyancing Act and there should be no reduction in the purchase price.
  • Further, there were special conditions in the contract that specifically dealt with the issue of rubbish at the property and the purchaser agreed to these conditions when he signed the contract after the auction.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a41%
case b59%

Expert commentary on the court's decision

“Careful drafting of the terms for sale of a property can help to avoid a costly mess.”
Can a purchaser seek a reduction of the purchase price of the property?

In the case Segal v Osborne [2016] NSWSC 941, the Supreme Court found in favour of the vendor.

While the case involved several contentious legal issues, the court deliberated on whether there was a successful claim under section 66M of the Conveyancing Act 1919 (NSW). Section 66M of the Conveyancing Act refers to abatement of the purchase price where land is damaged before the passing of the risk from the vendor to the purchaser.

Does the amount of rubbish left behind constitute damage?

The short answer is not necessarily. The court outlined that the property had been left in a considerably untidier state than it had been at the time of the auction. However, the photographs showed that while some of the rubbish appeared to be moved, the quantity of rubbish was consistent at the date of contract with the rubbish at the date of completion.

The situation seemed to be that following the auction, no new items had been brought onto the property, but that numerous items had been taken from storage places and abandoned in a disordered manner upon the floor. Such items were, in a sense, transformed into rubbish. That process resulted in areas of the property becoming cluttered, such that walking through those areas would be difficult to say the least.

Is leaving a substantial amount of rubbish behind acceptable?

However, the court concluded that these parts of the property had not been rendered “unusable”, although it did note that the degree of disorder would certainly exceed what many would find acceptable.

It was said that the presence of quantities of rubbish sufficient to render parts of a property unusable could in certain circumstances be regarded as damage to the property itself, however that was not this case.

The court found that the purchaser had not made out his claim that there had been “damage” to the property within the meaning of 66M of the Conveyancing Act and that the purchaser was not entitled to a reduction in the purchase price.

Can you contract out of a mess?

The court’s conclusion was reinforced by the terms of the special conditions that had been included in the contract by the vendor’s solicitors and that the purchaser had signed, which relevantly provided that the vendor was not required to remove any goods, equipment, building materials or rubbish from the property prior to completion, and that the vendor would be taken to have given vacant possession even if such goods, equipment, building materials or rubbish remained in or about the property on the completion date.

The court concluded that at all relevant times the items constituting “additional rubbish” fell within the expression “goods… equipment, building materials or rubbish”, even if they may not have been “rubbish” at the time of the auction. As this case shows, careful drafting of the terms for sale of a property can help to avoid a costly mess.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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