Chambers v Borness - [2014] NSWSC 890

Supreme Court

New South Wales

Medium Neutral Citation: Chambers v Borness [2014] NSWSC 890
Hearing dates: 30 June & 1 July 2014
Decision date: 01 July 2014
Jurisdiction: Equity Division
Before: Pembroke J
Decision:
See paragraphs [17] & [18]

Catchwords: REAL PROPERTY - Section 55 of Conveyancing Act - recovery of deposit - principles applicable
SET OFF - set off between judgments - judgment for balance - principles applicable
Legislation Cited: Civil Procedure Act, 2005 (NSW)
Conveyancing Act, 1919 (NSW)
Cases Cited: Barescape Pty Ltd v Bacchus Holdings Pty Ltd [2012] NSWSC 1275
Hasanovic v Bolisten (1982) NSW Conv Rep 55-078
Havyn Pty Limited v Webster [2005] NSWCA 182
Lucas and Tait (Investments) Pty Limited v Victoria Securities Ltd (1973) 2 NSWLR 268
Category: Principal judgment
Parties: Joanne Chambers - plaintiff
Stephen Frederick Borness - defendant
Representation: Counsel:
G Foster - for the plaintiff
S Reuben - for the defendant
Solicitors:
Sterling Legal - for the plaintiff
Pitcher Walton - for the defendant

File Number(s): 2013/367068

Judgment - EX TEMPORE

This is a claim commenced by the plaintiff seeking, among other things, an order that the 15 per cent deposit of $445,650, paid pursuant to a contract for sale of land between the plaintiff as purchaser and the defendant as vendor, be repaid to the plaintiff with interest, pursuant to Section 55(2A) of the Conveyancing Act1919 (NSW). The entitlement to interest is a discretionary statutory entitlement given by subsection (2A). The relevant facts are as follows.

The Facts

The contract for sale of land was entered into on 10 August 2012. The purchase price was $2,971,000. Special Condition 11 authorised the deposit to be released to the vendor upon exchange of contracts. A completion date 12 months after the date of contract was specified. Completion was therefore required on 10 August 2013. Clause 15 permitted either party to serve a notice to complete if completion had not occurred by the completion date. Special Condition 7.2 provided that if the purchaser failed to complete the contract on or before the completion date, otherwise than through the vendor's default, then the purchaser shall pay at completion, in addition to the balance of the purchase price adjustments and any other money payable under the contract, interest on the balance of the purchase price, calculated at the rate of 12 per cent per annum with effect from the completion date specified in the contract. However, for the reasons that I will explain, this clause has no direct application on the facts of this case.

The contract has been validly terminated by the vendor. Special Condition 7.2 is predicated on a completion by the purchaser but at a later date than the completion date specified in the contract. No such completion has occurred or will now occur.

Clause 18.2.2, together with Special Condition 1(m), provided:

The purchaser must not before completion make any change or structural alteration or addition to the property, other than as provided in Special Condition 17, or as otherwise agreed…

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 Chambers v Borness

Details

AGLC: Chambers v Borness [2014] NSWSC 890
Case: [2014] NSWSC 890
Decision Date: 01 July 2014

CaseChat Overview and Summary

In Chambers v Borness, the case before the court involved the recovery of a deposit paid in connection with a real property transaction. The parties, Chambers and Borness, were involved in a dispute over the deposit paid under a contract for the sale of property. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the deposit could be recovered under Section 55 of the Conveyancing Act 1919 (NSW), and whether any amounts due under separate judgments could be set off against each other.

The court needed to determine whether the deposit was recoverable and, if so, the principles governing such a recovery. Additionally, the court had to examine whether any amounts due under separate judgments could be set off against each other. The legal principles involved included the interpretation of Section 55 of the Conveyancing Act and the general rules regarding the set off of debts. The court also had to consider the balance of justice in determining whether the deposit should be returned or retained.

The court found that the deposit was recoverable based on the terms of the contract and the provisions of the Conveyancing Act. The principles applied included the interpretation of the contract and statutory provisions. The court determined that the set off of judgments was permissible where it was just and equitable to do so, considering the balance of justice between the parties. The court concluded that the deposit should be returned to the plaintiff with interest, and that any amounts due under separate judgments could be set off against each other. This outcome reflected a balanced approach to the equitable distribution of funds between the parties.

Orders