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Ari v Decevic

Ari v Decevic

Case [2013] NSWSC 1967 24 December 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Ari v Decevic [2013] NSWSC 1967
Hearing dates: 18, 19, 20 February 2013
Decision date: 24 December 2013
Jurisdiction: Common Law
Before: Slattery J
Decision:
Plaintiff successful against the defendant in recovering value of deposit. Judgment for the cross defendant bank against the cross claimant. Directions made for argument as to costs.

Catchwords:
CONTRACTS - contract for the sale of land - deposit provided by a bank deposit bond - completion date subsequently extended to accommodate a lease to a third party - validity of the deposit bond not extended - defendant not ready to complete at the completion date because of lack of financing - plaintiff terminated the contract, sold the property to a third party at a profit and sued the defendant for the deposit - whether the termination was invalid because the property was not vacant at the extended completion date and at the time of the notice to complete - whether the plaintiff's breach was waived by the defendant - whether the Court should exercise its discretion under Conveyancing Act 1919, s 55(2A) and not order the payment of the deposit.
CONTRACTS - the defendant cross-claimed against the bank for the loss caused by its refusal to finance the purchase of the property - the bank unconditionally approved the loan, issued a deposit bond and sent a written offer of finance to the defendant and her husband - the offer required for the loan to be drawn within 3 months - defendant did not return the signed offer to the bank until after the deadline expired - the defendants subsequent loan application was not approved because of judgment debts discovered on the updated credit check of the defendant's husband - whether a partly written and partly oral loan agreement was entered into between the bank and the defendant and her husband - whether the bank was entitled to refuse to provide finance because of the result of the credit check.
Legislation Cited: Conveyancing Act 1919 s 55(2A) (NSW)
Conveyancing (Amendment) Act (1930) (NSW)
Law of Property Act, 1925 (UK)
Uniform Consumer Credit Code
Cases Cited: Carrapetta v Rado [2012] NSWCA 202
Castle Hill Tyres Pty Ltd v Luxspice Pty Ltd (1996) 7 BPR 14,959
Dillon v Bepuri Pty Ltd (1989) NSW ConvR 55-436
Havyn Pty Ltd v Webster (2005) 12 BPR 22,837; [2005] NSWCA 182
HG and R Securities Pty Ltd v Sayer [2009] NSWSC 427
Lucantonio v Ciofuli (2003) 11 BPR 21,181
Malouf v Sterling Estates Development Corporation Pty Ltd [2002] NSWSC 920
McNally v Waitzer [1981] 1 NSWLR 294
Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286
Schindler v Pigault (1975) 30 P& Cr 328
Socratous v Koo (1993) NSW ConvR 55-685
Strickland v Grieve (1995) 7 BPR 14,376
Wilde v Anstee (1999) 48 NSWLR 387
Texts Cited: Lindgren, Time in the Performance of Contracts (2nd ed), Butterworths 1982
Category: Principal judgment
Parties: Plaintiff- Leon Ari
Defendant- Tania Decevic
Cross Claimant- Tania…

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 Ari v Decevic

Details

AGLC: Ari v Decevic [2013] NSWSC 1967
Case: [2013] NSWSC 1967
Decision Date: 24 December 2013

CaseChat Overview and Summary

The case of Ari v Decevic involved a dispute over the sale of a property between the plaintiff and the defendant. The plaintiff had entered into a contract for the sale of the property, providing a deposit secured by a bank deposit bond. The completion date was subsequently extended to accommodate a lease to a third party, however, the validity of the deposit bond was not extended. The defendant was not ready to complete at the extended completion date due to lack of financing. The plaintiff terminated the contract, sold the property to a third party at a profit and sued the defendant for the deposit. The defendant argued that the termination was invalid because the property was not vacant at the extended completion date and at the time of the notice to complete. Additionally, the defendant argued that the plaintiff's breach was waived by the defendant and that the Court should exercise its discretion under the Conveyancing Act 1919, s 55(2A) and not order the payment of the deposit.

The defendant cross-claimed against the bank for the loss caused by its refusal to finance the purchase of the property. The bank had unconditionally approved the loan, issued a deposit bond and sent a written offer of finance to the defendant and her husband. The offer required for the loan to be drawn within 3 months. The defendant did not return the signed offer to the bank until after the deadline expired. The defendants' subsequent loan application was not approved because of judgment debts discovered on the updated credit check of the defendant's husband. The defendant argued that a partly written and partly oral loan agreement was entered into between the bank and the defendant and her husband and that the bank was not entitled to refuse to provide finance because of the result of the credit check.

The Court found that the deposit bond was not valid beyond the original completion date, and the plaintiff was entitled to terminate the contract. The Court also found that the defendant's argument that the property was not vacant at the extended completion date and at the time of the notice to complete was not substantiated. The Court found that the plaintiff's breach was not waived by the defendant and that the Court should not exercise its discretion under the Conveyancing Act 1919, s 55(2A) and order the payment of the deposit. The Court found that the defendant was not entitled to a partly written and partly oral loan agreement and that the bank was entitled to refuse to provide finance because of the result of the credit check. The Court ordered the defendant to pay the deposit to the plaintiff and dismissed the defendant's cross-claim against the bank.

Orders