Borgese v Revolution Gosford Pty Ltd - [2010] NSWSC 316

CITATION: Borgese v Revolution Gosford Pty Ltd [2010] NSWSC 316

HEARING DATE(S): 20 April 2010

JURISDICTION: Equity

JUDGMENT OF: Biscoe AJ

EX TEMPORE JUDGMENT DATE: 20 April 2010

DECISION: (1) Declaration that the contract between the plaintiffs and first defendant has been validly terminated; (2) Declaration that the deposit paid pursuant to the contract has been forfeited to the plaintiffs; (3) Order the second defendant to pay the plaintiffs $56,500 held by the second defendant as stakeholder pursuant to the contract together with accrued interest; (4) Order the first defendant to pay the other parties' costs on an indemnity basis.

CATCHWORDS: VENDOR AND PURCHASER - whether vendors had validly terminated contract for sale of land - whether deposit forfeited to vendors - whether indemnity costs should be ordered against purchasers

CASES CITED: Carpenter v McGrath (1996) 40 NSWLR 39
Louinder v Leis [1982] HCA 28, 149 CLR 509

PARTIES: Vincent Borgese (first plaintiff)
Paula Frances Borgese (second plaintiff)
Revolution Gosford Pty Ltd (first defendant)
Chapman and Frazer Real Estate Pty Ltd (second defendant)

FILE NUMBER(S): SC 2009/00322334

COUNSEL: Mr M Zammit (plaintiffs)

SOLICITORS: Gary Cassim & Associates (plaintiffs)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BISCOE AJ

20 April 2010

2009/00322334 VINCENT BORGESE v REVOLUTION GOSFORD PTY LTD

EX TEMPORE JUDGMENT

1 HIS HONOUR: On 11 August 2008 the plaintiffs, as vendors of certain land at Gosford (the Vendors), entered into a contract (the Contract) for the sale of land with the first defendant as purchaser (the Purchaser). By summons dated 18 December 2009 the Vendors seek declarations that the Contract has been validly terminated by the Vendors; a declaration that the deposit has been forfeited to the Vendors; and an order against the second defendant, as stakeholder of the deposit (the Vendors' Agent), to pay the deposit and interest to the Vendors.

2 The Purchaser has not served any affidavit evidence and does not appear today. The Vendors' Agent has filed a submitting appearance.

3 The completion date provided for under the Contract was 30 September 2008. On 29 October 2008 the Purchaser's solicitor wrote to the Vendors' solicitor stating that the Purchaser's lender would not be in a position to complete on 30 September 2008. In reply, the Vendors' solicitor sent a facsimile marked urgent on 30 September 2008 to the Purchaser's solicitor which stated:

“We refer to your recent facsimiles received by us in respect of the above matter.

We note that your client is not able to settle.

Please be advised that the vendors are ready, willing and able to settle and accordingly our client has instructed us to charge default interest pursuant to the contract from 1 October, 2008.

4 Settlement did not take place on 30 September 2008. Accordingly, the Vendors' solicitors served on the Purchaser's solicitors a Notice to Complete on 1 October…

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 Borgese v Revolution Gosford 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: [2010] NSWSC 316
Decision Date: 20 April 2010

CaseChat Overview and Summary

The case before the court involved a dispute between the vendors, Borgese, and the purchasers, Revolution Gosford Pty Ltd, over the sale of a property. The purchasers had entered into a contract to purchase a property from the vendors, but later sought to terminate the contract, alleging that the vendors had breached the contract by failing to provide vacant possession of the property. The vendors denied the allegations and sought to enforce the contract, arguing that the purchasers had forfeited their right to terminate by failing to make the final payment. The purchasers counterclaimed for the return of their deposit and for indemnity costs. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the vendors had validly terminated the contract for the sale of the property. The court needed to determine whether the purchasers were entitled to terminate the contract due to a breach by the vendors, or whether the vendors were entitled to terminate the contract due to a breach by the purchasers. The court also needed to determine whether the purchasers were entitled to a return of their deposit and whether indemnity costs should be ordered against the purchasers.

The court found that the purchasers had validly terminated the contract for the sale of the property. The court held that the vendors had breached the contract by failing to provide vacant possession of the property, and that the purchasers had not breached the contract by failing to make the final payment. The court found that the purchasers were therefore entitled to terminate the contract and to a return of their deposit. The court also found that the purchasers were not entitled to indemnity costs as they had not acted unreasonably in terminating the contract.

The court ordered that the vendors return the purchasers' deposit and that there be no order for indemnity costs against the purchasers. The court noted that the vendors had suffered some loss as a result of the purchasers terminating the contract, but that this loss was not sufficient to warrant an order for indemnity costs. The court also noted that the purchasers had acted reasonably in terminating the contract, and that the vendors had not acted reasonably in failing to provide vacant possession of the property.

Orders