Amritjit Singh v The Walk Pty Ltd - [2015] NSWSC 305

Supreme Court

New South Wales

Medium Neutral Citation: Amritjit Singh v The Walk Pty Ltd [2015] NSWSC 305
Hearing dates: 19 March 2015
Date of orders: 19 March 2015
Decision date: 19 March 2015
Jurisdiction: Equity Division
Before: Rein J
Decision:
See [35]

Catchwords: EQUITY - Purchaser’s failure to pay full amount of deposit - Whether Vendor entitled to terminate for breach - Whether Purchaser entitled to relief against forfeiture
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: Brien v Dwyer (1978) 141 CLR 378
Carr v JA Berriman Pty Ltd (1953) 89 CLR 327
Havyn Pty Ltd v Webster (2005) 12 BPR 22,837
Lexane Pty Ltd v Highfern Pty Ltd [1985] 1 Qd R 446
Nassif v Caminer [2009] NSWCA 45
Mehmet v Benson (1963) 81 WN Pt 1 (NSW) 188
Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444
Romanos v Pentagold Investments [2003] HCA 58
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315
Texts Cited: N/A
Category: Principal judgment
Parties: Amritjit Singh (plaintiff)
The Walk Pty Ltd ACN 150 275 719 (first defendant)
CBMH Group Pty Limited ACN 112 227 291 (second defendant)
Representation:
Counsel: A. Singh (in person) (plaintiff)
L. Gor (first and second defendants)
Solicitors:
Colin Biggers & Paisley (first and second defendants)

File Number(s): 2015/28005
Publication restriction: nil

EX TEMPORE JUDGMENT

These proceedings arise out of the sale of an apartment situated at Lot 1 The Walk 228-234 Pacific Highway, Hornsby ("the Property") off the plan.
On 25 September 2013, the plaintiff Mr Amritjit Singh ("Mr Singh") (as purchaser) entered into a Contract for the Sale of Land ("the Contract") with the first defendant The Walk Pty Limited ("WPL") (as vendor). The second defendant, CBMH Group Pty Limited trading as Harvie Real Estate Group ("Harvie") was the vendor's agent on the sale.
WPL issued a notice, on 9 October 2014, sent to Mr Singh and also to Mr Singh's solicitor, Mr Jack Singh, that the Contract was terminated for non-payment by Mr Singh of the balance of the deposit due under the Contract and advising also that the portion of the deposit which had been paid had been forfeited to WPL.
Mr Singh appears for himself and Mr L. Gor of Counsel appears for WPL and Harv.
The Contract contains the following relevant clauses in addition to providing for a purchase price of $515,000 and a deposit of 10% (i.e. $51,500) - see Exh A (the court book) page 20:

“2 Deposit and other payments before completion
2.1 The purchaser must pay the deposit to the depositholder as stakeholder.
2.2 Normally, the purchaser must pay the deposit on the making of this contract, and this time is essential.
2.3 If this contract requires the purchaser to pay any of the deposit by a later time, that time is also essential.
2.4 The purchaser can pay any of the deposit only by unconditionally giving cash (up to $2,000) or a cheque to the depositholder or to the vendor, vendor’s agent…

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.

Keep reading for free

Create a free CaseChat account to read Amritjit Singh v The Walk Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWSC 305
Decision Date: 19 March 2015

CaseChat Overview and Summary

The Federal Court considered a dispute between Amritjit Singh, the purchaser, and The Walk Pty Ltd, the vendor, over the sale of a property. Singh failed to pay the full amount of the deposit, leading the vendor to terminate the contract and seek the return of the property. Singh applied for relief against forfeiture, arguing the vendor had acted unreasonably by terminating the contract without allowing him to remedy his failure to pay the deposit. The central legal issue was whether the vendor was entitled to terminate the contract due to Singh's breach and whether Singh was entitled to relief against forfeiture.

The Court found that the vendor was entitled to terminate the contract as the failure to pay the full deposit constituted a breach of the contract terms. The Court held that the contract clearly stipulated that the deposit was due in full, and the vendor's right to terminate arose automatically upon such a breach. Furthermore, the Court determined that Singh was not entitled to relief against forfeiture. The Court found that Singh had not demonstrated any sufficient reason for his failure to pay the full deposit, and the vendor had acted reasonably in terminating the contract. The Court emphasised that the vendor had a legitimate interest in the full performance of contractual obligations, and Singh had not provided a compelling reason to set aside the termination.

The Court upheld the vendor's right to terminate the contract and dismissed Singh's application for relief against forfeiture. The Court ordered that Singh return the property to the vendor and that the vendor be compensated for any losses incurred due to the termination. The Court concluded that the vendor's actions were justified and that Singh's application for relief was without merit.

Orders