Culjak v Akrawe - [2022] NSWSC 949

Supreme Court

New South Wales

Medium Neutral Citation: Culjak v Akrawe [2022] NSWSC 949
Hearing dates: 27-28 June 2022; 7 July 2022
Date of orders: 19 July 2022
Decision date: 19 July 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiffs held entitled to recover deposit after validly terminating contract for first defendant’s breach.

Catchwords:
CONTRACTS – contract for the sale of land – notice to complete – relief against forfeiture – specific performance – where purchaser failed to complete by time specified in notice to complete – where vendors subsequently terminated contract – where purchaser seeks relief against forfeiture – not shown that vendors caused or contributed to purchaser’s breach of contract – held that vendors’ exercise of legal right to terminate the contract was not unconscientious – specific performance accordingly not available
CONTRACTS – deposit – contract for the sale of land – where vendors claim to have forfeited purchaser’s deposit by reason of purchaser’s breach of contract – where purchaser seeks order for return of deposit pursuant to Conveyancing Act 1919 (NSW) s 55(2A) – held not unjust or inequitable to allow vendors to forfeit the deposit in accordance with the terms of the contract

Legislation Cited:
Conveyancing Act 1919 (NSW), s 55(2A)

Cases Cited:
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Harkins v Butcher; Butcher v Lachlan Elder Realty Pty Ltd (2002) 55 NSWLR 558; [2002] NSWCA 237
Havyn Pty Ltd v Webster (2005) 12 BPR 22,837; [2005] NSWCA 182
Lucas & Tait (Investments) Pty Ltd v Victoria Securities Ltd [1973] 2 NSWLR 268
Luu v Sovereign Developments Pty Ltd (2006) 12 BPR 23,629; [2006] NSWCA 40
Romanos v Pentagold Investments Pty Ltd (2003) 217 CLR 367; [2003] HCA 58
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57

Category: Principal judgment
Parties: Margaret Marita Culjak (First Plaintiff/First Cross-Defendant)
Ante Culjak (Second Plaintiff/Second Cross-Defendant)
Behnam Said Akrawe (First Defendant/Cross-Claimant)
BMD Consulting Pty Ltd (Second Defendant)
Representation:
Counsel:
Mr M Lozina (Plaintiffs/Cross-Defendants)
Mr S Y Reuben (First Defendant/Cross-Claimant)
Solicitors:
Agostino & Co Solicitors & Attorneys (First Defendant/Cross-Claimant)
Barry Nilsson Lawyers (Second Defendant)

File Number(s): 2021/182919
Publication restriction: None

Judgment

Introduction

This case concerns a contract for the sale of land in respect of a residential property in Cobbett Street, Wetherill Park. The contract was entered into on 12 December 2020 by the plaintiffs as vendor and by the first defendant as purchaser. The contract provided for a purchase price of $1,550,000, including a 10% deposit of $155,000. The deposit was paid, and it became held by the second defendant as stakeholder.
The contract provided for a date of completion that was the 42^nd day after the date of the contract. After taking account of the fact that that day (24 January 2021) was a Sunday, the contractual date for completion became 25 January 2021 (see cl 21.5 of the contract). However, by agreement between the parties, the date for completion was extended to 22 February 2021. Settlement did…

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 Culjak v Akrawe

Details

AGLC: Culjak v Akrawe [2022] NSWSC 949
Case: [2022] NSWSC 949
Decision Date: 19 July 2022

CaseChat Overview and Summary

In the case of Culjak v Akrawe, the parties were engaged in a dispute concerning the sale of land. The purchaser, Culjak, failed to complete the sale by the time specified in a notice to complete. The vendors, Akrawe, subsequently terminated the contract. Culjak sought relief against forfeiture and specific performance. The legal issues before the court were whether the vendors had acted unconscionably by terminating the contract and whether the vendors were justified in forfeiting the deposit.

The court held that the vendors had not caused or contributed to Culjak's breach of contract. The vendors' exercise of their legal right to terminate the contract was not deemed unconscientious. Consequently, specific performance was not available to Culjak. The court further determined that it was not unjust or inequitable to allow the vendors to forfeit the deposit in accordance with the terms of the contract. The vendors were thus entitled to retain the deposit as stipulated in the agreement.

The court's decision underscores the importance of strict adherence to contractual terms and the consequences of failing to complete a sale of land as specified. The vendors' actions were deemed lawful, and Culjak's requests for relief against forfeiture and specific performance were denied. The final orders reflected the court's determination that the vendors were entitled to retain the deposit and that specific performance was not granted.

Orders