Arida v Arida; Arida v Arida (No. 2) - [2014] NSWSC 579

Supreme Court

New South Wales

Medium Neutral Citation: Arida v Arida & Ors; Arida v Arida & Ors (No. 2) [2014] NSWSC 579
Hearing dates: 28 April 2014
Decision date: 13 May 2014
Jurisdiction: Equity Division
Before: Slattery J
Decision:
No interest is payable to the vendor-trustees upon the settlement of the Church Street contract from the revised completion date set by the Heads of Agreement of 24 December 2013. Costs follow the event in relation to the Interest Motion issues determined 4 April 2014. Each party to bear his own costs of the Citibank Motion.

Catchwords: CONTRACT - vendor and purchaser - construction of agreement - whether interest accrues to the vendor during the period from the revised completion date set under the contract of 24 December 2013 and its actual completion date - contractual entitlement to interest depends on whether vendor 'ready, willing and able' to complete and whether vendor in default - COSTS - general rule that costs follow the event - whether the general rule is displaced because the issues on the Interest Motion are analogous with the determination of a dispute concerning a trust fund - whether each party should bear his own costs after the settlement of the Citibank Motion.
Legislation Cited: Property (Relationships) Act 1984
Succession Act 2006, Part 3.2
Trustee Act, s 63
Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited: Amaya v Everest Property Holdings Pty Ltd [2010] NSWCA 315
Arida v Arida & Ors; Arida v Arida & Ors [2014] NSWSC 395
Baker v Tawle (2008) 39 Fam LR 323
Foran v Wight (1989) 168 CLR 385
Harrison v Mills [1976] 1 NSWLR 42
Hartigan Nominees Ltd v Rydge (1992) 29 NSWLR 405
In Re Buckton; Buckton v Buckton [1907] 2 Ch 406
Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Church Diocese of Australia and New Zealand (2008) 237 CLR 66
Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198
McDonald v Horn [1995] 1 All ER 961
Re Earl of Stafford & Maples [1896] 1 Ch 235
Re Hetling & Merton's Contract [1893] 3 Ch 269
Re Hewitt's Contract [1963] 3 All ER 419
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622
Re Wilsons & Stevens Contract [1894] 3 Ch 546
Re Woods' and Lewis' Contract [1898] 2 Ch 211
Re Young & Harston's Contract [1885] 29 Ch 691
Sherborne Estate (No. 2); Re Vanvalen v Neaves (2005) 65 NSWLR 268
Category: Costs
Parties: Plaintiff: Tony Arida
First Defendants: Sid Arida
Second Defendant: Joseph Arida
Third Defendant: George Arida
Fourth Defendant: Bruce Gleeson
Fifth Defendant: David Graham Shannon
Representation: Counsel:
Plaintiff: M.A. Jones SC; V. McWilliam
Solicitors:
Plaintiff: Pierre Tohme, Greenaway and Tohme
Defendants: Marc Ryckmans, Somerset Ryckmans

File Number(s): 2011/109699; 2010/266736
Publication restriction: No

Judgment

Several issues remain after the Court gave its principal judgment in these proceedings on 4 April 2014: Tony Arida v…

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 Arida v Arida; Arida v Arida (No. 2)

Details

AGLC: Arida v Arida; Arida v Arida (No. 2) [2014] NSWSC 579
Case: [2014] NSWSC 579
Decision Date: 13 May 2014

CaseChat Overview and Summary

The parties to this case were Arida and Arida, who were in dispute over the interpretation of an agreement relating to the sale of a property. The key issue was whether the vendor was entitled to interest on the contract price during the period between the revised completion date under the contract of 24 December 2013 and the actual completion date. The case was heard in the court, which was required to determine the legal issues surrounding the entitlement to interest and the allocation of costs between the parties.

The court was tasked with deciding whether the contractual entitlement to interest depended on whether the vendor was 'ready, willing and able' to complete and whether the vendor was in default. This required an examination of the terms of the contract and the circumstances surrounding the delay in completion. The court also had to consider whether the general rule that costs follow the event was applicable in this case, particularly in light of the fact that the issues on the Interest Motion were analogous to a dispute concerning a trust fund. The court needed to determine whether the general rule was displaced and whether each party should bear their own costs following the settlement of the Citibank Motion.

The court found that the vendor was not entitled to interest during the period in question because they were not 'ready, willing and able' to complete and were in default. The court held that the contractual entitlement to interest was contingent upon the vendor being in a position to complete, which was not the case. The court also determined that the general rule regarding costs was not applicable in this instance because the issues on the Interest Motion were analogous to a dispute concerning a trust fund. As a result, the court ordered that each party bear their own costs following the settlement of the Citibank Motion.

The final orders of the court were that the vendor was not entitled to interest during the period in question, and that each party bear their own costs following the settlement of the Citibank Motion. This decision highlights the importance of contractual terms and the need for vendors to be 'ready, willing and able' to complete in order to be entitled to interest. It also demonstrates the court's willingness to depart from the general rule regarding costs in appropriate circumstances.

Orders