Clark v Zele - [2023] NSWCA 296

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Clark v Zele [2023] NSWCA 296
Hearing dates: 28 November 2023
Date of orders: 11 December 2023
Decision date: 11 December 2023
Before: Payne JA [1];
Kirk JA [2];
Stern JA [3].
Decision:
(1) Time for filing a notice of appeal is extended to 3 October 2023 under UCPR, r 51.16(2).
(2) The appeal is dismissed.
(3) Mr Clark is to pay Mr and Mrs Zele’s costs of the appeal.

Catchwords:
CONTRACT – sale of residential property – the appellant and respondents entered into a contract for the sale of the appellant’s property – completion did not occur by the completion date – the respondents sought and were granted specific performance and declaratory relief with the question of damages reserved – Parker J found deposit payable under contract of sale was paid in full by the respondents and was valid and binding – specific performance later became impossible – matter relisted before the Real Property List Judge – both parties purport to terminate the contract of sale – further hearing before Peden J to determine whether respondents are entitled to return of deposit paid under the contract of sale – appellant contends deposit not fully paid as sum of $3,750 had been forfeited pursuant to Conveyancing Act 1919 (NSW) s 66V – the respondents rescinded an earlier contract during the cooling off period – appellant contends forfeited amount cannot form part of the deposit under the contract of sale – Peden J declared the respondents validly terminated contract – Peden J ordered return of deposit to the respondents – Peden J’s orders made in accordance with earlier finding of Parker J that deposit was paid by respondents in full – whether Peden J erred in returning deposit amount to respondents – where appellant does not challenge earlier judgment or orders of Parker J.
APPEALS – procedure – appellant filed notice of intention to appeal on 10 July 2023 – appellant filed notice of appeal on 13 September 2023 – appellant served notice of appeal on 3 October 2023 – notice of appeal served out of time – respondent does not oppose extension of time for filing notice of appeal – extension of time for filing notice of appeal allowed pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 51.16(2).

Legislation Cited:
Conveyancing Act 1919 (NSW), ss 66U, 66V(2), 66V(3), 66V(8), 66X
Supreme Court Act 1970 (NSW), ss 101(1), 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), rr 51.16(1), 51.16(2).

Cases Cited:
Despot v Registrar General of New South Wales [2016] NSWCA 5
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481
Zele v Clark [2022] NSWSC 925

Category: Principal judgment
Parties: Richard Bernard Clark (Appellant)
Paul Stefan Zele (First respondent)
Anne Margaret Zele (Second respondent)
Representation:
Counsel:

R. Clark (Appellant, self-represented)
J. Pearson (Respondent)

Solicitors:
Hunt & Hunt Lawyers (Respondent)

File Number(s): 2023/221746
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Supreme…

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 Clark v Zele

Details

AGLC: Clark v Zele [2023] NSWCA 296
Case: [2023] NSWCA 296
Decision Date: 11 December 2023

CaseChat Overview and Summary

The appeal concerned a dispute arising from a contract for the sale of residential property between the appellant, Mr Clark, and the respondents, Mr and Mrs Zele. Following the failure to complete the sale by the agreed date, the respondents initially sought and were granted specific performance and declaratory relief by Parker J, who found the deposit paid was valid and binding. Subsequently, specific performance became impossible, and both parties purported to terminate the contract. A further hearing before Peden J determined the respondents' entitlement to the return of the deposit.

The central legal issue before Peden J was whether the appellant was entitled to retain a sum of $3,750, which he contended had been forfeited pursuant to section 66V of the Conveyancing Act 1919 (NSW). The appellant argued this forfeited amount could not form part of the deposit under the contract of sale. The respondents, having rescinded an earlier contract during the cooling-off period, asserted their right to the return of the full deposit.

Peden J declared that the respondents had validly terminated the contract and ordered the return of the deposit, acting in accordance with Parker J's earlier finding that the deposit had been paid in full. The appeal to the Court of Appeal concerned whether Peden J erred in returning the deposit, particularly given the appellant did not challenge the earlier judgment or orders of Parker J. The Court of Appeal granted the appellant an extension of time to file the notice of appeal.

The Court of Appeal dismissed the appeal and ordered the appellant to pay the respondents' costs.

Orders

Orders of the court

(1) Time for filing a notice of appeal is extended to 3 October 2023 under UCPR, r 51.16(2).

(2) The appeal is dismissed.

(3) Mr Clark is to pay Mr and Mrs Zele’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Clark v Zele [2023] NSWCA 296
Hearing dates:	28 November 2023
Date of orders:	11 December 2023
Decision date:	11 December 2023
Before:	Payne JA [1]; Kirk JA [2]; Stern JA [3].
Decision:	(1) Time for filing a notice of appeal is extended to 3 October 2023 under UCPR, r 51.16(2). (2) The appeal is dismissed. (3) Mr Clark is to pay Mr and Mrs Zele’s costs of the appeal.
Catchwords:	CONTRACT – sale of residential property – the appellant and respondents entered into a contract for the sale of the appellant’s property – completion did not occur by the completion date – the respondents sought and were granted specific performance and declaratory relief with the question of damages reserved – Parker J found deposit payable under contract of sale was paid in full by the respondents and was valid and binding – specific performance later became impossible – matter relisted before the Real Property List Judge – both parties purport to terminate the contract of sale – further hearing before Peden J to determine whether respondents are entitled to return of deposit paid under the contract of sale – appellant contends deposit not fully paid as sum of $3,750 had been forfeited pursuant to Conveyancing Act 1919 (NSW) s 66V – the respondents rescinded an earlier contract during the cooling off period – appellant contends forfeited amount cannot form part of the deposit under the contract of sale – Peden J declared the respondents validly terminated contract – Peden J ordered return of deposit to the respondents – Peden J’s orders made in accordance with earlier finding of Parker J that deposit was paid by respondents in full – whether Peden J erred in returning deposit amount to respondents – where appellant does not challenge earlier judgment or orders of Parker J. APPEALS – procedure – appellant filed notice of intention to appeal on 10 July 2023 – appellant filed notice of appeal on 13 September 2023 – appellant served notice of appeal on 3 October 2023 – notice of appeal served out of time – respondent does not oppose extension of time for filing notice of appeal – extension of time for filing notice of appeal allowed pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 51.16(2).
Legislation Cited:	Conveyancing Act 1919 (NSW), ss 66U, 66V(2), 66V(3), 66V(8), 66X Supreme Court Act 1970 (NSW), ss 101(1), 101(2)(r) Uniform Civil Procedure Rules 2005 (NSW), rr 51.16(1), 51.16(2).
Cases Cited:	Despot v Registrar General of New South Wales [2016] NSWCA 5 University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 Zele v Clark [2022] NSWSC 925
Category:	Principal judgment
Parties:	Richard Bernard Clark (Appellant) Paul Stefan Zele (First respondent) Anne Margaret Zele (Second respondent)
Representation:	Counsel: R. Clark (Appellant, self-represented) J. Pearson (Respondent) Solicitors: Hunt & Hunt Lawyers (Respondent)
File Number(s):	2023/221746
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Supreme…