Amanatidis v Syed & Anor - [2009] VSC 350

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4922 of 2008

HARRY AMANATIDIS	Plaintiff
v
MONA EERAM SYED and MAZHAR ALIAIG MIRZA	Defendants

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April, 1 and 7 May 2009
DATE OF JUDGMENT	20 August 2009
CASE MAY BE CITED AS:	Amanatidis v Syed
MEDIUM NEUTRAL CITATION:	[2009] VSC 350

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PROPERTY LAW - Sale of land – Residential units and car spaces on strata titles – Units owned by one or other vendor solely – Contract of sale in form of joint sale by vendors – Whether contract effective – Non-payment of residue – Rescission by vendors – Whether effective – Purchaser seeks specific performance.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W F Gillies	Peter W Johnson
For the Defendants	Mr J M Selimi	Starnet Legal Pty Ltd

HIS HONOUR:

In this proceeding the plaintiff, Harry Amanatidis, seeks specific performance of a contract of sale dated 27 October 2007 whereby the defendants, Mona Eeram Syed and Mazhar Aliaig Mirza, sold to the plaintiff “Units 1-12 on Plan of Subdivision 13339 being all that piece of land more particularly described in Certificate of Title Volume 9319 Folio 167-178” and situated at and known as Unit 1-6, 3 Eldridge Street, Footscray (“the property”) for $910,000. Units 1-6 were residential units and units 7-12 were car parking spaces; together they comprised all of the units at the property.

The property had been passed in at an auction conducted earlier that day by Hocking Stuart, agents appointed by the defendants, at which the plaintiff had been the highest bidder. Following the auction, a negotiation occurred in which Nicholas Gerard Cuni, an employee of Hocking Stuart, dealt with and obtained instructions from the plaintiff and the auctioneer Fernando Costa, also an employee of Hocking Stuart, dealt with and obtained instructions from the second defendant. Agreement being thus reached between Cuni and Costa, the parties duly executed the contract of sale.

The contract of sale

In the particulars of sale in the contract:

(a)the “Vendor” was stated to be “Mona Eeram Syed and Mazhar Aliaig Mirza”;
(b)the purchase price was stated to be payable as to $91,000 by way of deposit on the signing thereof and the residue of $819,000 at the expiration of 60 days or earlier by agreement. As to this, it is common ground on the pleadings that the deposit payable, and actually paid on signing, was $45,500, leaving a residue of $864,500 payable on 27 December 2007 or earlier by agreement; and
(c)the land sold was described as quoted at [1] above.

The contract included the following General Conditions:

(a)Condition 9.1 which incorporated the General Conditions in Table A;
(b)Condition 10 which provided that in the case of conflict between the conditions the order of priority is:
(i)any special condition;
(ii)general conditions in the contract;
(iii)general conditions in legislation;

(c)Condition 13.1 which states that the purchaser must provide the instrument of transfer…

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 Amanatidis v Syed & Anor

Details

AGLC: Amanatidis v Syed [2009] VSC 350
Case: [2009] VSC 350
Decision Date: 20 August 2009

CaseChat Overview and Summary

In the matter of Amanatidis v Syed & Anor, the dispute centred around the sale of residential units and car spaces on strata titles. The purchasers, Amanatidis, sought to enforce a contract for the sale of certain units and car spaces. The vendors, Syed and another, argued that the contract was ineffective and sought to rescind the sale. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court involved the effectiveness of a contract of sale in the form of a joint sale by the vendors, where only one vendor had title to the units and car spaces. The court was required to determine whether the contract was effective and, if so, whether the vendors' attempted rescission was valid. Additionally, the court had to consider whether the purchaser was entitled to specific performance of the contract.

The court found that the contract of sale was effective despite being in the form of a joint sale. The court held that the purchasers had relied on the representation that both vendors were selling their respective interests in the property. The court further held that the attempted rescission by the vendors was ineffective because the purchasers had already paid a deposit and incurred costs in reliance on the contract. The court granted the purchasers specific performance of the contract, ordering the vendors to complete the sale of the property as per the terms of the contract.

Orders