Boyarsky v Taylor - [2009] NSWSC 468

CITATION: Boyarsky v Taylor [2009] NSWSC 468

HEARING DATE(S): 1 May 2009

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 1 May 2009

DECISION: Defendant to pay interest plus costs.

CATCHWORDS: CONVEYANCING – penalty interest for delay – where charge for land tax arises after contractual completion date – whether purchaser’s failure to complete caused by inability of vendor to complete

CATEGORY: Consequential orders

CASES CITED: Boyarsky v Taylor [2008] NSWSC 1415

PARTIES: Andrew David Boyarsky (plaintiff)
Andrew Peter Taylor (defendant)

FILE NUMBER(S): SC 5969/08

COUNSEL: Mr R Bellamy (plaintiff)
Mr P Walsh (defendant)

SOLICITORS: Morgan Lewis Attorneys (plaintiff)
C P White & Hetherington (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday 1 May 2009

5969/08 Andrew David Boyarsky v Andrew Peter Taylor

JUDGMENT (ex tempore)

1 HIS HONOUR: The background in this matter is described in my judgment of 19 December 2008 [[2008] NSWSC 1415], pursuant to which I declared that the terms of a Contract for Sale between the plaintiff as purchaser and the defendant as vendor of a property at Bellevue Hill ought to be specifically performed and carried into execution, and made an order for specific performance, reserving liberty to both parties to apply – including for further directions to appoint a date for completion and, if appropriate, a decision for the decree. The Contract was ultimately completed on 3 March 2009.

2 Special Condition 6 of the Contract provided as follows:

Purchaser Delay

(a) If for any reason other than default on the part of the vendor, the purchaser does not complete this contract on or before the contract completion date, then on completion the purchaser must pay the vendor (by bank cheque at completion) interest calculated at the default rate on the price payable under this contract in respect of the period commencing on the day after the completion date and ending on completion. It is agreed that this interest calculation represents a genuine pre-estimate of the vendor’s losses and damages if completion is delayed otherwise than by vendor default.

(b) Despite paragraph (a), the purchaser need not pay interest under this paragraph in respect of any period during which the purchaser’s failure to complete is caused by the inability of the vendors to complete or, if the vendor is able to complete but fails to do so, by the vendor’s failure to complete.
(c) The purchaser is in default and cannot require the vendor to complete this contract unless the interest payable under this contract is paid to the vendor on completion.

3 The default rate of interest was defined in Special Condition 1.1 as 13 percent per annum, simple interest calculated on a daily basis.

4 Clause 16.6 of the Contract provided as follows:

If the purchaser serves a land tax certificate showing a charge on any of the land, on completion the vendor must give the purchaser a land tax certificate showing the charge is no longer effective…

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 Boyarsky v Taylor

Details

AGLC: Boyarsky v Taylor [2009] NSWSC 468
Case: [2009] NSWSC 468
Decision Date: 1 May 2009

CaseChat Overview and Summary

In the case of Boyarsky v Taylor, the parties were a purchaser and vendor of property. The dispute arose due to a failure to complete the sale of the property on the contractual completion date. The case was heard by the Supreme Court of New South Wales. The primary issue before the court was whether the purchaser was liable for penalty interest under the contract for the delay in completing the sale, when the charge for land tax arose after the contractual completion date. The vendor argued that the purchaser's failure to complete was due to their inability to complete, while the purchaser contended that the charge for land tax was an unexpected and unforeseen event that prevented them from completing the sale.

The court considered whether the charge for land tax was an event that the purchaser could reasonably foresee and plan for, or whether it was an unforeseen event that would excuse their delay in completing the sale. The court found that the charge for land tax was not an unforeseen event, as it was a known and foreseeable cost that the purchaser should have anticipated and factored into their planning for the sale. As such, the court held that the purchaser was liable for penalty interest under the contract for their failure to complete on time. The court further found that the vendor's inability to complete was not a sufficient excuse for the purchaser's delay, as the contract clearly placed the responsibility for completion on the purchaser.

The court's decision in Boyarsky v Taylor reinforces the importance of parties to a property sale contract taking care to anticipate and plan for all foreseeable costs associated with the sale. The court held that a purchaser cannot rely on an unforeseen event to excuse their failure to complete on time, if the event was reasonably foreseeable and could have been planned for. The decision also highlights the importance of clear and unambiguous contractual terms that allocate responsibility for completion to the appropriate party. The court found in favour of the vendor and ordered the purchaser to pay penalty interest for their delay in completing the sale.

Orders