Blecher v Zou - [2024] NSWSC 70

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Blecher v Zou [2024] NSWSC 70
Hearing dates: 1 February 2024
Date of orders: 8 February 2024
Decision date: 08 February 2024
Jurisdiction: Equity
Before: Pike J
Decision:
(1)   The Court declares that of the funds held in escrow by Laing & Simmons Double Bay in respect of the sale of 26 Myuna Road, Dover Heights on or about 10 August 2022, the Plaintiff is entitled to $99,692.00 and the Defendants are entitled to $308.00.
(2)   The Court orders the parties to notify Laing & Simmons Double Bay to release the funds in accordance with the declaration set out at Paragraph 1 above.
(3)   The Court orders the Defendants to pay to the Plaintiff pre-judgment interest in the sum of $9,553.94.
(4)   The Court orders the Plaintiff file and serve by no later than 15 February 2024 any material and submissions on which she intends to rely on the question of costs, such submissions to be no longer than three pages in length.
(5)   The Court orders the Defendants to file and serve by no later than 22 February 2024 any material and submissions on which they intend to rely on the question of costs, such submissions to be no longer than three pages in length.
(6)   The Court orders that the question of costs be determined on the papers.

Catchwords:
REAL PROPERTY – Sale of land - Repairs – Duty to repair – Obligation under bespoke agreement between vendor and purchaser
CONTRACT – terms and conditions – construction and interpretation of contract

Legislation Cited:
Uniform Civil Procedure Rules (NSW) 2005, Schedule 7

Cases Cited:
Hewitt v Debus [2004] NSWCA 54
Kyrwood & Ors v Drinkwater & Ors [2000] NSWCA 126
Ruthol Pty Ltd v Tricon (Australia) Pty Ltd [2005] NSWCA 443

Texts Cited:
Nil

Category: Principal judgment
Parties: Yula Blecher (Plaintiff)
Chen Qing Zou (First Defendant) (self-represented)
Jing Shen (Second Defendant) (self-represented)
Representation:
Counsel: Mr Nicholas Allan (Plaintiff)
Solicitors: Ziman and Ziman Solicitors (Plaintiff)
Self-represented (Defendants)

File Number(s): 2023/00055040
Publication restriction: Nil

Judgment

Introduction

By contract for Sale of Land dated 8 February 2022 (Contract), the Plaintiff agreed to sell to the Defendants the property described as 26 Myuna Road, Dover Heights in New South Wales (Property). The purchase price was $5.8 million.
Settlement of the purchase was to take place six months later on 8 August 2022.
As described more fully below, a dispute arose between the parties on settlement in relation to the condition of the Property. An agreement was entered into between the parties to allow settlement to occur whereby the Vendor’s agent under the Contract – Laing & Simmons Double Bay – would retain $100,000.00 of the purchase price pending an attempted repair of the defects then identified.
The parties have thereafter been unable to agree whether all of the defects identified have been repaired. Accordingly, by Summons filed 17 February 2023, the Plaintiff seeks the following relief:

A declaration that…

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 Blecher v Zou

Details

AGLC: Blecher v Zou [2024] NSWSC 70
Case: [2024] NSWSC 70
Decision Date: 08 February 2024

CaseChat Overview and Summary

The matter of Blecher v Zou came before the court to determine whether the purchaser of a property had an obligation to repair certain defects under a bespoke agreement between the parties. The purchaser, Blecher, argued that the vendor, Zou, had breached the agreement by not repairing specified defects, while the vendor contended that no such obligation existed. The court was tasked with interpreting the terms of the agreement to ascertain the extent of Blecher's obligations.

The primary legal issue before the court was the interpretation of the bespoke agreement to determine whether Blecher was required to undertake repairs to the property. The court had to examine the specific language used in the agreement, the context in which it was made, and any relevant industry practices or standards. The court needed to decide whether the agreement imposed a duty on Blecher to repair the identified defects or if such repairs were solely the vendor's responsibility.

In its reasoning, the court closely examined the language of the agreement and found that the terms did not explicitly impose a duty of repair on Blecher. The court held that the obligations outlined in the agreement were limited to the sale and purchase of the property itself, without extending to post-sale maintenance or repairs. The court concluded that the agreement did not impose a duty on Blecher to carry out repairs, and therefore, Zou had not breached the agreement by failing to do so. The court's interpretation was based on the clear and unambiguous language of the agreement, and the absence of any specific provisions regarding repairs.

The court ordered that Blecher was not required to undertake any repairs to the property under the terms of the bespoke agreement. Zou's claim for breach of the agreement was dismissed, and Blecher was not liable for any repairs. The court's decision underscored the importance of precise language in contractual agreements and the need for parties to clearly define their obligations and responsibilities.

Orders