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Alexakis v Wan

Alexakis v Wan

Case [2021] NSWSC 367 12 April 2021

Contract Formation

Breach of Contract

Statutory Interpretation

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Supreme Court

New South Wales

Medium Neutral Citation: Alexakis v Wan [2021] NSWSC 367
Hearing dates: 29-30 March 2021
Date of orders: 12 April 2021
Decision date: 12 April 2021
Jurisdiction: Equity
Before: Darke J
Decision:
Defendants held to be entitled to terminate the contract and recover the deposit.

Catchwords:
LAND LAW – contracts for the sale of land – deposit payable in two instalments – second instalment payable “on the 4th month after the contract date” – contract dated 4 April 2019 – whether second instalment required to be paid by 4 August 2019, or by 31 August 2019 – held that payment was required by 4 August 2019 – vendors held to be entitled to terminate contract on 5 August 2019 – Conveyancing Act 1919 (NSW) s 181(1)(d) definition of “month” as “calendar month” – Interpretation Act 1987 (NSW) s 21 definition of “calendar month”
EQUITY – equitable remedies – relief in respect of exercise of legal rights – exercise of right to terminate contract for sale of land – breach giving rise to right of termination brought about by purchaser’s mistake – mistake not caused or contributed to by conduct of vendors – serious breach in failing to pay part of deposit within time agreed to be essential – no substantial loss or prejudice to vendors if contract ordered to be performed – not unconscientious of vendors to rely upon their termination – equitable relief declined – forfeiture of deposit of 5% of the price not unjust or inequitable in the circumstances – no order made for return of deposit under s 55(2A) of Conveyancing Act 1919 (NSW)

Legislation Cited:
Conveyancing Act 1919 (NSW) ss 55(2A), 181
Interpretation Act 1987 (NSW) s 21

Cases Cited:
Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd (2018) 19 BPR 38,569; [2018] NSWCA 114
Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd [2017] NSWSC 1230
Brien v Dwyer (1978) 141 CLR 378; [1978] HCA 50
Dodds v Walker [1981] 1 WLR 1027
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Re Weston Application; Employers Mutual Indemnity (Workers Compensation) Ltd v Omni Corporation Pty Ltd (2009) 255 ALR 362; [2009] NSWSC 264
Romanos v Pentagold Investments Pty Ltd (2003) 217 CLR 367; [2003] HCA 58
Rushcutters Bay Developments Pty Ltd v Dragon Asset Investment Pty Ltd (No 2) (2017) 18 BPR 37,025; [2017] NSWSC 866
Shiloh Spinners v Harding [1973] AC 691
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57

Category: Principal judgment
Parties: Theo Alexakis (Plaintiff/Cross-Defendant)
Chi Hing Wan (First Defendant/First Cross-Claimant)
Kwan Yee Chan (Second Defendant/Second Cross-Claimant)
Representation:
Counsel:
Mr D R Pritchard SC with Mr M H Southwick (Plaintiff/Cross-Defendant)
Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexakis v Wan

Details

AGLC: Alexakis v Wan [2021] NSWSC 367
Case: [2021] NSWSC 367
Decision Date: 12 April 2021

CaseChat Overview and Summary

In the case of Alexakis v Wan, the High Court of Australia was asked to determine the interpretation of a contractual obligation relating to the payment of a deposit for the sale of land. The vendor and purchaser had entered into a contract on 4 April 2019, stipulating that a deposit would be paid in two instalments, with the second instalment due "on the 4th month after the contract date." The central dispute was whether the second instalment was due on 4 August 2019 or by 31 August 2019. The purchaser failed to pay the second instalment by 4 August 2019, leading the vendor to terminate the contract on 5 August 2019.

The court was required to interpret the phrase "4th month after the contract date" under the terms of the contract, considering the definitions of "month" provided in the Conveyancing Act 1919 (NSW) and the Interpretation Act 1987 (NSW). The court also needed to determine whether the equitable doctrine of relief against the exercise of strict legal rights could apply to prevent the forfeiture of the deposit, given that the purchaser's failure to pay was due to a mistake and not misconduct by the vendor.

The court held that the phrase "4th month after the contract date" should be interpreted as 4 August 2019, based on the statutory definitions of "month" as a "calendar month." The purchaser's failure to pay the deposit by this date constituted a serious breach, which was essential to the contract. Given that the vendor had not contributed to the purchaser's mistake and would not suffer substantial loss or prejudice if the contract were enforced, the court declined to grant equitable relief. The vendor's exercise of their right to terminate the contract and forfeit the deposit was deemed just and equitable in the circumstances. The court thus dismissed the purchaser's application for relief under section 55(2A) of the Conveyancing Act 1919 (NSW).

Orders