E J Cooper and Son Pty Limited v Galdes

[2015] NSWSC 1335

Supreme Court

New South Wales

Medium Neutral Citation:	E J Cooper & Son Pty Limited v Galdes [2015] NSWSC 1335
Hearing dates:	10 September 2015
Date of orders:	10 September 2015
Decision date:	10 September 2015
Jurisdiction:	Equity
Before:	Young AJA
Decision:	Plaintiff to pay deposit into court
Catchwords:	VENDOR & PURCHASER – four vendors described as owner – deposit to be paid to ‘Owner’ defined as the four vendors – deposit to be released to owner – whether a joint debt – whether each vendor can receive one quarter of deposit – as the four vendors cannot agree – deposit to be paid into court – whether principle in Bragg v Alam [1981] 1 NSWLR 688 means that payment of deposit is excused
Cases Cited:	Bragg v Alam [1981] 1 NSWLR 688
Texts Cited:	Glanville Williams, Joint Obligations (London: Butterworth, 1949)
Category:	Principal judgment
Parties:	E J Cooper & Son Pty Limited - plaintiff George Galdes – first defendant Carmen Galdes – second defendant Ivan Zalac – third defendant Margaret Zalac – fourth defendant
Representation:	Counsel: K Andronos SC – for the plaintiff R Wilson SC – for the first and second defendants Ivan Zalac – third defendant in person R Bell – for the fourth defendant     Solicitors: Henry Davis York – for the plaintiff Tilley Family Law & Mediation – for the first and second defendants Ivan Zalac – third defendant in person Argyle Lawyers – for the fourth defendant
File Number(s):	2015/191954

Judgment

1. These are strange proceedings. The plaintiff is the prospective purchaser of some valuable land at Box Hill. It is apparently purchasing not only the subject land but also adjoining land. It entered into an "irrevocable offer deed" with the four defendants on the 27 August 2012. The four defendants are George and Carmen Galdes and the title shows that they are joint tenants of a one half undivided share as tenants in common with their daughter and son-in-law Margaret and Ivan Zalac who are the fourth and third defendants. The Zalacs own between them, as joint tenants, the other one half undivided share as tenants in common. The deed describes Mr and Mrs Galdes and Mrs Zalac as the ‘Owner’ of the subject property. The present plaintiff is described as the ‘Investor’. Under the deed the Investor had to pay part of a deposit or else it was in danger of losing the land, to put the matter neutrally. The time came for paying part of the deposit, some $863,000, but matrimonial problems between the third and fourth defendants have put an impediment in the way because the four persons described as ‘Owner’ cannot agree as to what should happen to that sum.

2. The plaintiff does not care much what happens to the $863,000 as long as its rights to the property are preserved and it is quite content to pay the $863,000 into Court or to abide the decision of the Court as to how that money should be paid out.

3. There is a peripheral matter, and that is whether the decision in Bragg v Alam [1981] 1 NSWLR 688 means that the owner having frustrated the payment, the payment should be considered as having been deemed to have been made.

4. The case came on for hearing this morning. Mr K Andronos SC appeared for the plaintiff; Mr R Wilson SC appeared for the Galdeses; Mr R Bell appeared for Ms Zalac and Mr Zalac appeared in person.

5. Mr Andronos made it quite clear that he did not rely on the principle in Bragg v Alam because there was some doubt, at least, as to how far it applied outside the area of options. His client was quite willing to pay the money into Court and to let the defendants to fight it out between themselves what would happen to it.

6. No-one really objects to the money being paid into Court, however there is very strong debate between the defendants as to what should happen to it. Everyone except Mrs Zalac would be content for the money to be paid out equally to the four defendants. Everyone except Mr Zalac would be content for the first and second defendants to have their money and for the balance to remain until the Family Court decides what should happen to it.

7. Earlier this morning, having read the evidence and having heard the addresses, I gave an indication that my view was that if the parties could not agree then the moneys could be paid into Court and the Family Court would have to decide who got what. The first and second defendants are already parties to the Family Court proceedings and that would seem to be the more appropriate tribunal to be able to deal with the whole fund, even though, unfortunately, it would seem that the time for this case to get on in the Family Court would be much longer than it would in this Court.

8. Mr Wilson puts that the parties have the right to be paid their share of the moneys and that I should make a declaration in his cross-claim to that effect.

9. I am not at all sure that there is an actual right to be paid the moneys, and I do not need to go into that because if Bragg v Alam does apply there is clearly no right to receive any moneys. The payment into Court is made by grace of the plaintiff. If Bragg v Alam does not apply, then when the Court can see that there is a dispute between a husband and wife and the wife's parents as to the moneys, it is usually safer to preserve them until that dispute can be solved by the Family Court or anywhere else that the parties accept or by mediation. And in the Court's discretion no declaration would be made.

10. When one looks at the irrevocable offer deed, it is important to note that there is no clause dealing with whether the rights and duties of the owner when the owner consists of four individuals are joint or several or joint and several. The document seems to proceed on the basis that if there is only one entity as the Owner, and that the payments are to be made to that one entity. I cannot see in the document any right that the persons described as the Owner intersay are entitled to an aliquant share of the money.

11. That construction is reinforced by the general principle which can be found in Glanville Williams, Joint Obligations (London: Butterworth, 1949), that where there is no distinction made the Court is entitled to assume that the parties have their right as a joint right and not a several right.

12. Accordingly, the only right is that one sum of money is to be paid to the Owner, the Owner cannot agree between themselves as to distribution and so the plaintiff is entitled to make the payment into court. And there the moneys can remain until the owner works out between themselves entitlement or a Court of competent jurisdiction so decides.

13. Of course under the procedure once moneys are paid into court they are usually paid out to the NSW Trustee and Guardian to be put in a common fund so that it will attract some interest.

14. There is one issue left and that is that in the cross-claim order 4 is an order that Mr Zalac be restrained from preventing Mrs Zalac from having access to the subject property pursuant to clause 6 of the Irrevocable Offer Deed. That matter has not been ventilated today and Mr Wilson asks that it stand over to the registrar's list in about two months' time, and I have not heard any opposition to that and it seems sensible.

15. Accordingly, I make declarations 1 and 2 in the amended summons adding at the end of 2(a) ‘and copies to the solicitors for the first and second defendants, and the fourth defendant personally’.

16. I make order 3 that the plaintiff pay the sum of $863,000 into court within seven days of delivery of the documents referred to in order 2.

17. Order 4: that the plaintiff's costs of these proceedings are to be charged upon the moneys paid into court. And that after they have been agreed or assessed an application may be made to a Registrar for payment out.

18. The first cross-claim is adjourned to the Registrar's list on 10 November 2015 at 9am.

19. It is to be noted that it appears that the only outstanding matter is order 4 in that cross-claim as I have declined to make the declarations in the earlier parts of it.

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Decision last updated: 14 September 2015