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Boyarsky v Taylor

Boyarsky v Taylor

Case [2008] NSWSC 1415 22 December 2008

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CITATION: Boyarsky v Taylor [2008] NSWSC 1415

HEARING DATE(S): 19 December 2008

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 22 December 2008

DECISION: Term of contract requiring payment of remainder of deposit on completion date declared void. Specific performance decreed, with liberty to apply for further direction or rescission.

CATCHWORDS: EQUITY – equitable remedies – specific performance – defences – impossibility – where purchaser does not have funds available to complete purchase – discretionary considerations – where purchaser owns other assets, including an interest in a former matrimonial home to be sold pursuant to court order and it is expected that the proceeds will be sufficient to complete contract – where purchaser is otherwise unlikely to obtain finance – hardship – whether difficulty in finding the purchase money amounts to hardship or impossibility - CONTRACTS – penalties – whether provision requiring payment of second instalment of deposit upon completion date is void as a penalty - COSTS – costs follow the event

LEGISLATION CITED: (NSW) Conveyancing Act 1919, s 52A(4)

CATEGORY: Principal judgment

CASES CITED: AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170
Bartercard Ltd v Myallhurst Pty Ltd [2000] QCA 44
Bridge v Campbell Discount Co Ltd [1962] AC 600
Cooden Engineering Co Ltd v Stanford [1953] 1 QB 86
Dowsett v Reid (1912) 15 CLR 695
Ferguson v Wilson (1866) LR 2 Ch 77
Goldsbrough Mort & Co Ltd v Quinn (1910) 10 CLR 674
Iambic Pty Ltd v Northwind Holdings Pty Ltd [2001] WASC 44
Iannello v Sharpe [2007] NSWCA 61; (2007) 69 NSWLR 452
Lamare v Dixon LR 6 HL 414
Luu v Sovereign Developments Pty Ltd [2006] NSWCA 40
Norton v Angus (1926) 38 CLR 523
O’Dea v All States Leasing System (WA) Pty Ltd (1983) 152 CLR 359
Pasedina (Holdings) Pty Ltd v Khouri (1977) 1 BPR 9460
Seawell v Webster (1859) 29 LJ Ch 71
Tamplin v James 15 ChD 215
Turner v Bladin (1951) 82 CLR 463
Wedgwood v Adams (1843) 6 Beav 600
Wilson v Northampton and Banbury Junction Railway Company (1874) LR 9 ChApp 279

TEXTS CITED: E Fry, A Treatise on the Specific Performance of Contracts, 3rd ed, Stevens & Sons, London
I C F Spry, Principles of Equitable Remedies, 7th ed, Law Book Co, Sydney, 2007

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

FILE NUMBER(S): SC 5969/08

COUNSEL: Mr JWJ Stevenson SC w Mr RI Bellamy (plaintiff)
Mr JL Doyle (defendant)

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

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Monday 22 December 2008

5969/08 Andrew David Boyarsky v Andrew Peter Taylor

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiff Andrew David Boyarsky claims specific performance of a contract dated for the sale of Lot 101 in Deposited Plan 1130091 situate at and known as 45 XXXX Road Bellevue Hill, under which Mr Boyarsky is the vendor and the defendant, Andrew Peter…

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 [2008] NSWSC 1415
Case: [2008] NSWSC 1415
Decision Date: 22 December 2008

CaseChat Overview and Summary

The case of Boyarsky v Taylor involved a dispute concerning the enforcement of a contract for the sale of a property. The purchaser, Boyarsky, sought specific performance of the contract, while the vendor, Taylor, argued that specific performance should not be granted due to Boyarsky's inability to fund the purchase and the presence of a penalty clause in the contract. The case was heard in the Supreme Court of New South Wales.

The court was required to determine whether Boyarsky's lack of funds constituted an impossibility or hardship that would excuse performance of the contract, and whether a clause in the contract that required payment of a second instalment of deposit upon completion was void as a penalty. Additionally, the court considered the appropriate allocation of costs under the "costs follow the event" principle.

The court found that Boyarsky's inability to fund the purchase did not amount to impossibility or hardship, as Boyarsky owned other assets, including an interest in a former matrimonial home that was expected to generate sufficient funds to complete the contract. The court also held that the penalty clause was not void, as it was a genuine pre-estimate of loss. Consequently, the court ordered Boyarsky to complete the purchase of the property and awarded costs to Taylor under the "costs follow the event" principle.

Orders