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Carydis v Merrag Pty Ltd

Carydis v Merrag Pty Ltd

Case [2007] NSWSC 1220 20 September 2007

Contract Formation

Repudiation & Termination

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CITATION: Carydis v Merrag Pty Ltd [2007] NSWSC 1220

HEARING DATE(S): 19 - 20 September 2007

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 20 September 2007

DECISION: Decree of specific performance granted to purchaser subject to compensation to vendor.

CATCHWORDS: CONTRACTS – Conditional contracts – accord and satisfaction – whether formation or performance of contract conditional – Repudiation – Abandonment – Remedies – Specific Performance. - EQUITY – Equitable remedies – specific performance – whether purchaser ready, willing and able to complete – when readiness must be established – specific performance with compensation to defendant - where plaintiff has been in default of non-essential time condition – compensation allowed to vendor.

LEGISLATION CITED: (NSW) Conveyancing Act 1919, ss 52A, 66U
(NSW) Conveyancing (Sale of Land) Regulation 2005

CASES CITED: Commonwealth Refineries Ltd v Hollins [1956] VLR 169
Fitzgerald v Masters (1956) 95 CLR 420
Mehmet v Benson (1965) 113 CLR 295
Osborn v McDermott [1998] 3 VR 1
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Sommers v Pearse (NSWCA, 16 December 1993, unreported, BC 9302367)

PARTIES: Spero Danis Carydis (first plaintiff)
Helen Travassaros (second plaintiff)
Merrag Pty Limited (defendant)

FILE NUMBER(S): SC 3001/07

COUNSEL: Mr F Kunc v Mr C Bova (plaintiffs)
Mr G Moore (defendant)

SOLICITORS: Gadens Lawyers (plaintiffs)
DTA Lawyers (defendant)

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

BRERETON J

Thursday, 20 September 2007

3001/07 Spero Danis Carydis v Merrag Pty Limited

JUDGMENT (ex tempore)

1 HIS HONOUR: Prior to 22 March 2004 the first plaintiff Spero Danis Carydis, the second plaintiff Helen Travassaros, and Ms Mary Lane were the registered owners of real property situate at and known as 11-13 Oaks Avenue, Dee Why. Prior to 4 November 2003, they had entered into negotiations with Mr Michael Khoury and Mr Rodney Khoury on behalf of the defendant Merrag Pty Limited, for the sale of the Dee Why property. On 4 November 2003, Mr Carydis, Ms Travassaros and Ms Lane as vendors and Merrag as purchaser exchanged contracts for sale of the Dee Why land; the contract contemplated that contemporaneously with exchange the parties would execute deeds of put and call option in respect of five of the proposed units, which would be dated upon completion of the contract.

2 The contract was duly completed on 17 March 2004, and the deeds of put and call option, in respect of the lots which ultimately became lots 2, 3, 21, 22 and 30 were dated that day. The deeds of put and call option granted to Mr Carydis (in respect of lots 3, 21, 22 and 30), and Ms Travassaros (in respect of lot 2), a call option to purchase the respective lots at any time during the call option exercise period (defined as the period commencing 43 days after the date of the option deed and ending at any time prior to 5pm 14 days following receipt by the purchaser of written notification…

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 Carydis v Merrag Pty Ltd

Details

AGLC: Carydis v Merrag Pty Ltd [2007] NSWSC 1220
Case: [2007] NSWSC 1220
Decision Date: 20 September 2007

CaseChat Overview and Summary

Carydis was the plaintiff in a dispute with Merrag Pty Ltd, the defendant, concerning a conditional contract for the sale of property. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the contract was conditional on the performance of certain conditions, specifically whether the formation or performance of the contract was contingent on certain events. Additionally, the court needed to determine if there had been any repudiation or abandonment of the contract by either party and, if so, what remedies were available. The plaintiff sought specific performance of the contract, while the defendant argued that the contract was conditional and had not been fully satisfied.

The court examined the terms of the contract to ascertain whether it was conditional on the occurrence of specific events. The court considered the obligations of both parties and whether there had been any conduct that could be construed as repudiation or abandonment of the contract. The court further analysed whether the plaintiff was ready, willing, and able to complete the contract and if specific performance was an appropriate remedy. In assessing the availability of specific performance, the court took into account the plaintiff's default in a non-essential condition and whether compensation to the defendant would be appropriate. Ultimately, the court determined that the contract was indeed conditional and that specific performance could be granted with compensation to the defendant.

In its reasoning, the court found that the contract was conditional upon the performance of certain obligations by both parties. The court held that the plaintiff's failure to adhere to a non-essential time condition did not preclude the grant of specific performance. The court concluded that the plaintiff was ready, willing, and able to complete the contract and that the appropriate remedy was specific performance with compensation to the defendant. The court also found that the defendant's conduct did not amount to repudiation or abandonment of the contract. The final orders of the court granted specific performance of the contract to the plaintiff with compensation to the defendant, taking into account the plaintiff's default in the non-essential time condition.

Orders