Betty Sbragi v Helen Barac - [2014] NSWSC 404

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Betty Sbragi v Helen Barac [2014] NSWSC 404
Hearing dates: 1 April 2014
Date of orders: 01 April 2014
Decision date: 01 April 2014
Jurisdiction: Equity Division
Before: Young AJA
Decision:
Notice of motion dismissed. The plaintiff’s costs to be paid by the defendants on an indemnity basis.

Catchwords:
CONVEYANCING - whether time of the essence - under terms of settlement defendant was to purchase plaintiffs’ interest in real property. Plaintiffs not to present any transfer earlier than eight weeks - whether defendant obliged to complete right on expiry of eight weeks
PRACTICE - proceedings settled - whether motion in proceedings competent to obtain damages for breach - Civil Procedure Act 2005 (NSW) s 73
Legislation Cited: Conveyancing Act 1919 (NSW) s 13
Civil Procedure Act 2005 (NSW) s 73
Cases Cited: Hexiva Pty Ltd v Lederer (No. 2)
Category: Procedural and other rulings
Parties: Betty Sbragi (plaintiff)
Helen Barac (first defendant)
Sylvia Mason (second defendant)
Representation:
Counsel:
E.H.J. Hyde with S. Kanagaratnam (plaintiff)
D. Moujalli (for the defendants)
Solicitors:
Trinity Law (plaintiff)
Baker Deane & Nutt (for the defendants)

File Number(s): 2013/91584
Publication restriction: None

Judgment

The plaintiff commenced these proceedings under s 66G of The Conveyancing Act 1919 (NSW) for sale of co-owned property.
That case did not come on for hearing because there was a mediation. The outcome of the mediation was that the parties entered into a Deed of Settlement. That Deed dated 4 September 2013 is in evidence before me.
Essentially, the Deed provided that the plaintiff would buy out the other co-owners’ interests in the subject property for $645,000.
The Deed contained, amongst others, the following clauses, 2.2 requiring a deposit of 5% which was paid.
Clauses 2.4 and 2.6 I should set out in full:

2.4 upon presentation of a signed transfer and the Certificate of Title the plaintiff will provide bank cheques for the balance of the settlement sum made payable to the defendants or their nominees in equal proportions to their ownership of the property.
2.6 the defendants must not present the signed transfer any earlier than eight weeks from the date of this Deed".

The other provisions in the Deed which are relevant to the present problem are 7.4 noting correspondence sent by post was taken to have been received three days after posting.

8.7 the warranties, undertakings and indemnities in this Deed do not merge on completion and instead survive until performed in full.
8.8 the parties must do all things necessary and ancillary to give effect to this Deed, including signing such documents and forms as required by law.
8.9 this Deed constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
8.12 this Deed is governed by the law in force in the Australian Capital Territory and each party submits to the exclusive jurisdiction of the Courts of that place.

I should have also…

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.

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Details

Case: [2014] NSWSC 404
Decision Date: 01 April 2014

CaseChat Overview and Summary

The case of Betty Sbragi v Helen Barac involved a dispute between the plaintiff and the defendant regarding the purchase of the plaintiff's interest in a property. The terms of the settlement required the defendant to purchase the property, with the plaintiff not to present any transfer earlier than eight weeks. The primary issue was whether the defendant was obliged to complete the purchase upon the expiry of the eight-week period, given that the plaintiffs were not to present any transfer earlier than that time. Additionally, the court had to consider whether a motion in the proceedings could be used to obtain damages for a breach, in accordance with section 73 of the Civil Procedure Act 2005 (NSW).

The court found that the eight-week period was not an absolute deadline, but rather a minimum period within which the plaintiffs could not present any transfer. The court concluded that the defendant was not obliged to complete the purchase upon the expiry of the eight weeks, as the plaintiffs had the discretion to present the transfer at any time within that period. The court also held that a motion in the proceedings could be used to obtain damages for a breach, provided that it was in accordance with section 73 of the Civil Procedure Act 2005 (NSW). The court found that the defendant had breached the terms of the settlement by failing to complete the purchase, and that the plaintiffs were entitled to damages.

In light of the above findings, the court ordered the defendant to pay damages to the plaintiffs for the breach of the settlement terms. The court also ordered that the proceedings be settled, with the terms of the settlement to be determined by the parties. The court held that the motion in the proceedings was competent to obtain damages for the breach, and that the plaintiffs were entitled to recover the costs of the proceedings from the defendant. Overall, the court's decision provided clarity on the obligations of the parties under the terms of the settlement, and confirmed the availability of damages for breaches of such agreements.

Orders