Adricula v Samwood

[2000] NSWSC 57

CITATION:	Adricula v Samwood [2000] NSWSC 57
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 1061 of 1999
HEARING DATE(S):	16 February 2000
JUDGMENT DATE:	16 February 2000
PARTIES :	Federico Adricula (First Plaintiff) Agnes Adricula (Second Plaintiff) Samwood Investments Pty Limited (First Defendant) Kongs Realty Pty Ltd (Second Defendant)
JUDGMENT OF:	Windeyer J at 1

COUNSEL :	Mr D. Marks (Plaintiffs) Unrepresented and no appearance (Defendants)
SOLICITORS:	Ken Lam & Co (Plaintiffs) Unrepresented and no appearance (Defendants)
CATCHWORDS:	VENDOR AND PURCHASER - termination of contract - return of deposit
DECISION:

1

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

WEDNESDAY, 16 FEBRUARY 2000

1061/99 FEDERICO ADRICULA & ANOR v SAMWOOD INVESTMENTS PTY LIMITED & ANOR

JUDGMENT

1    HIS HONOUR: In this matter neither of the defendants has appeared today on the hearing of the plaintiffs' claim for a declaration that they have validly terminated the contract for the sale of property 14 Harrow Street, Auburn, from them as vendors to Samwood Investments Pty Limited as purchaser.

2    The only basis on which it can possibly have been said that they were not entitled to so terminate and then recover the deposit, which was furnished by means of a bond in respect of which the amount has now been paid to the agent for the second defendant, is that the contract was not signed or properly executed by the first defendant.

3    On that basis the claim must be doomed to fail as the solicitors for the purchaser have quite clearly affirmed the execution of the contract in correspondence and by forwarding a transfer signed by Mr Lui as solicitor for the transferee, namely, Samwood Investments Pty Limited.

4    The contract was not completed on the due date, namely, 9 September 1998. Notice to complete was then given and as the contract was not completed in accordance with that notice which was dated 10 September 1998, the contract was terminated and in those circumstances the vendors are entitled to forfeit the deposit and are therefore entitled to an order requiring the second defendant, Kong Realty Pty Limited, to pay the deposit to them and I propose to make that order.

5    As there is nothing to connect the second defendant to the default of the first defendant, the order for costs should be that the first defendant pay the costs of both the plaintiffs and the second defendant.

(Mr Marks addressed on costs)

6    I make the declarations as sought in paragraph 1 of the summons but substituting the word "terminated" for "rescinded" in that paragraph.

7    I make the declaration as sought in paragraph 2.

8    I make the order as sought in paragraph 4.

9    I order the first defendant to pay the costs of the plaintiffs of the proceedings and the costs of the second defendant but only as if it were a submitting defendant.

10    The exhibits can be returned.

Last Modified: 09/25/2000