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Buchanan v Dunstan

Buchanan v Dunstan

Case [2007] NSWSC 248 19 March 2007

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CITATION: June St Clare Buchanan v Catherine Elizabeth Dunstan [2007] NSWSC 248

HEARING DATE(S): 15 & 16 March 2007

JUDGMENT DATE :
19 March 2007

JURISDICTION: Equity Division

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 19 March 2007

DECISION: Direct counsel to bring in short minutes of order in accordance with the reasons.

CATCHWORDS: CONVEYANCING – Contract for sale – Purchaser failed to complete – Property resold – Deficiency in sale price – Deposit forfeited – Whether deposit to be credited against reasonable expenses of resale and purchaser’s default – Held that in a claim for liquidated damages under cl. 9.3.1 of 2000 edition of New South Wales Standard Contract for the Sale of Land the forfeited deposit is only to be set off against deficiency on resale and not against reasonable expenses of resale and purchaser’s default.PROCEDURE – Pleadings – Application for leave to amend pleadings to seek relief against forfeiture – Evidence of prejudice to vendor if leave granted – leave refused.

LEGISLATION CITED: Property, Stock and Business Agents Act 2002 (NSW)
Conveyancing Act 1919 (NSW)
Civil Procedure Act 2005 (NSW)

CASES CITED: Tiplady v Gold Coast Carlton Pty Ltd (1984) 8 FCR 438
Jampco Pty Ltd v Cameron (No. 2) (1985) 3 NSWLR 391
Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288
Hansmar Investments Pty Limited v Perpetual Trustee Company Limited [2007] NSWSC 103
Peter Butt, The Standard Contract for Sale of Land in New South Wales, 2 ed, 1998, LBC Information Services
Carpenter v McGrath (1996) 40 NSWLR 39
Cratchley v Bloom (1984) 3 BPR 9432; (1984) NSW ConvR 555-203
Ockenden v Henly (1858) EB & L 485; 120 ER 590
Consolidated Credit Network Pty Limited v Illawarra Retirement Trust Limited (No. 2) [2005] NSWSC 1007
Eighth SRJ Pty Limited v Merity (1997) 7 BPR 15,189
Clarke v Dilberovic (1982) NSW ConvR 55-083
Poort v Development Underwriting (Vic) Pty Limited (No. 2) (1996) VR 779
Bernard v Weingarth (1997) 8 BPR 15,651 Lucantonio v Ciofuli (2003) 11 BPR 21,181
Mulkearns & Anor v Chandos Developments Pty Limited (No.4) (2005) 12 BPR 22,993

PARTIES: June St Clare Buchanan
v
Catherine Elizabeth Dunstan

FILE NUMBER(S): SC 5391/05

COUNSEL: Plaintiff: J Hyde
Defendant: P King

SOLICITORS: Plaintiff: Wright Stell Lawyers
Defendant: Segal & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Monday, 19 March 2007

5391/05 June St Clare Buchanan v Catherine Elizabeth Dunstan

JUDGMENT

1 HIS HONOUR: This is a vendor and purchaser suit. On 13 August 2005, the plaintiff was the successful bidder at an auction for the sale of a property at unit 2/767-771 Old South Head Road, Vaucluse. On that day, she entered into a contract to purchase the property from the defendant for $320,000. A ten per cent deposit was paid.

2 On 30 August 2005, the solicitors for the purchaser alleged that at the auction, the auctioneer exercised more than one vendor's bid. On 16 September 2005, the purchaser purportedly rescinded the…

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 Buchanan v Dunstan

Details

AGLC: Buchanan v Dunstan [2007] NSWSC 248
Case: [2007] NSWSC 248
Decision Date: 19 March 2007

CaseChat Overview and Summary

The matter before the court involved Buchanan as the plaintiff and Dunstan as the defendant, where the issue at hand was the forfeiture of a deposit following a failed sale of property. The case was adjudicated in the Supreme Court of New South Wales. The plaintiff, Buchanan, sought to recover a deficiency in the sale price after the defendant, Dunstan, failed to complete the purchase as per the contract. Additionally, Buchanan aimed to recover the forfeited deposit, which Dunstan had lost due to his failure to complete the sale.

The central legal issue before the court was the interpretation of the liquidated damages clause in the 2000 edition of the New South Wales Standard Contract for the Sale of Land. Specifically, the court had to determine whether the forfeited deposit could be credited against both the deficiency in the resale price and the reasonable expenses incurred by the vendor as a result of the purchaser's default. The court also considered an application by Buchanan for leave to amend pleadings to seek relief against the forfeiture, evaluating whether granting such leave would prejudice Dunstan.

In its judgment, the court clarified that under clause 9.3.1 of the aforementioned contract, the forfeited deposit could only be credited against the deficiency in the resale price, and not against the reasonable expenses of resale and purchaser's default. Consequently, the court denied Buchanan's application for leave to amend the pleadings, as it found that allowing such amendments would prejudice Dunstan. Therefore, the court held that the forfeited deposit could not be set off against the reasonable expenses incurred by Buchanan due to Dunstan's default, and the relief sought by Buchanan was limited to the deficiency in the resale price.

Orders