Ding v Su - [2012] NSWSC 629

Supreme Court

New South Wales

Medium Neutral Citation: Ding v Su [2012] NSWSC 629
Hearing dates: Wednesday 2 May 2012
Decision date: 02 May 2012
Jurisdiction: Equity Division - Duty List
Before: Brereton J
Decision:
Order for specific performance

Catchwords: REAL PROPERTY - contract for the sale of land - whether interest payable on vendor's default - specific performance
PRACTICE AND PROCEDURE - Document served in accordance with contract - Vendor unable to be contacted - Contract for sale of land provides that service on party's solicitor is sufficient service - Service sufficient under UCPR r 10.6.
Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 10.6
Cases Cited: Kapos v Jury [2011] NSWSC 1090
Category: Principal judgment
Parties: Liancheng Ding (First Plaintiff)
Lei Fu (Second Plaintiff)
Shao Miao Su (Defendant)
Representation: Mr Killalea (plaintiffs)
Hencent & Day Lawyers (plaintiffs)

File Number(s): 11/ 273978

Judgment (ex tempore)

HIS HONOUR: By summons filed on 25 August 2011 and amended on 6 March 2012, the plaintiffs Liancheng Ding and Lei Fu claim against the defendant Shao Miao Su specific performance of a contract made between the defendant as vendor and the plaintiffs as purchasers on 16 January 2004 of land situate at and known as XXX/X Black Lion Place, Raleigh Park, Kensington, in the State of New South Wales, being Lot 26 in Folio Identifier 26/SP 50XXX.

There is no appearance, and never has been any appearance, by the defendant, who, it appears, personally, is in China and has been there since about 2004. However, for the reasons that follow, I am satisfied that, for the purpose of these proceedings, there has been sufficient service of the proceedings, including of the amended summons and motion that bring it before the Court today.

Clause 20.6.3 of the contract provides that a document under, or relating to the contract, is served if it is served on the party's solicitor, even if the party has died, or any of them has died. In the contract, the vendor's solicitor is identified as William Chan and Co, solicitors, of suite 407, 208 Forest Street, Hurstville, with a phone, facsimile and DX number. Notice of the proceedings and, in particular, the amended summons, was served on the office of Mr Chan, at least, on 6 March 2012. Although the affidavit of service is deficient in form, the fact of service is confirmed by Mr Chan's response of the same date, in which he returned the documents asserting that he would not inform the defendant of the matter. This is apparently because since about 2007, there had been a dispute between Mr Chan and his former client, but, in the circumstances, that does not detract from the fact that Mr Chan is, for the purpose of the contract, the vendor's solicitor, as defined, on whom service can take place.

While, normally, in circumstances where there was a dispute between the solicitor and client of the type that has become apparent here, one would strive to achieve some alternative means…

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.

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Details

Case: [2012] NSWSC 629
Decision Date: 02 May 2012

CaseChat Overview and Summary

The case of Ding v Su involved a dispute over a contract for the sale of land. The plaintiff, Ding, sought to enforce specific performance of a contract for the sale of a property against the defendant, Su, who had failed to complete the sale as agreed. A central issue in the case was whether interest should be payable on the contract price due to the vendor's default. Another issue was the validity of service of a document in accordance with the contract terms, despite the vendor being unable to be contacted directly.

The court was required to determine whether the contract terms were clear and unambiguous regarding the method of service and the consequences of the vendor's default. The contract specified that service on a party's solicitor would be deemed sufficient service, and Ding had served the document on Su's solicitor as per these terms. The court had to consider if this method of service was compliant with the requirements of the Uniform Civil Procedure Rules 2005 (NSW). Additionally, the court had to assess the contractual obligations of the parties and whether the vendor's default entitled the purchaser to interest on the contract price.

In delivering the judgment, the court found that the method of service, by serving the document on Su's solicitor, was sufficient under the terms of the contract and also complied with UCPR rule 10.6. The court held that the contract was clear and unambiguous in its provisions for service and that Ding had fulfilled the contractual requirements. Regarding the interest payable, the court concluded that since the vendor had defaulted in completing the sale, the purchaser was entitled to interest on the contract price from the date the contract should have been completed. The court ordered specific performance of the contract and awarded interest at the contractual rate from the date of default.

The final orders of the court included the granting of specific performance of the contract for the sale of the property, along with an award of interest on the contract price from the date of the vendor's default. The court's decision underscored the importance of clear contractual terms and the proper method of service, affirming that such provisions are enforceable and valid under both contract law and the UCPR.

Orders