Ebadeh-Ahvazi v Namrood - [2017] NSWSC 399

Supreme Court

New South Wales

Medium Neutral Citation: Ebadeh-Ahvazi v Namrood [2017] NSWSC 399
Hearing dates: 28 – 29 March 2017
Date of orders: 12 April 2017
Decision date: 12 April 2017
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiff vendor is entitled to the deposit paid by the defendant purchaser.

Catchwords: CONVEYANCING – contract for sale of land – purported termination by both parties – obligations on vendor to perform works by completion – whether performance required by completion date under contract or time of actual completion – whether vendor complied with obligations – validity of notice to perform – validity of notice to complete – whether vendor engaged in misleading and deceptive conduct – whether deposit should be returned
Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2, s 18
Conveyancing Act 1919 (NSW), ss 55(2A)
Environmental Planning and Assessment Act 1979 (NSW), ss 85A, 121B, 121D
Protection of the Environment Operations Act 1997 (NSW), s 96(2)
Cases Cited: Baird v Chambers (2010) 15 BPR 28,337; [2010] NSWSC 272
Gustin v Taajamba Pty Ltd (1988) 4 BPR 97,274
Jillinda Pty Ltd v McCourt (1983) 3 BPR 97,174
Louinder v Leis (1982) 149 CLR 509
McNally v Waitzer [1981] 1 NSWLR 294
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31
Nassif v Caminer (2009) 74 NSWLR 276; [2009] NSWCA 45
Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286
Sydney Developments Pty Ltd v Perry Properties
Pty Ltd (2016) 18 BPR 35,905; [2016] NSWSC 515
Williams v Pisano (2015) 90 NSWLR 342; [2015] NSWCA 177
Texts Cited: Peter Butt, The Standard Contract for Sale of Land in New South Wales (Second Edition, 1998).
Category: Principal judgment
Parties: Sam Ebadeh-Ahvazi (Plaintiff/Cross-Defendant)
Sarjon Youssif Namrood (Defendant/Cross-Claimant)
Representation:
Counsel:
Ms B Oliak (Plaintiff/Cross-Defendant)
Mr G M McGrath (Defendant/Cross-Claimant)
Solicitors:
Galluzzo Lawyers (Plaintiff/Cross-Defendant)
Isho Lawyers (Defendant/Cross-Claimant)

File Number(s): 2015/311268
Publication restriction: None

Judgment

Introduction

These proceedings concern a contract for the sale of about 5.75 acres of vacant land in Selkirk Avenue, Cecil Park. The contract was made on 16 May 2015 between the plaintiff as vendor and the defendant as purchaser. The contract was in the 2005 edition of the Law Society-Real Estate Institute standard form, supplemented by various special conditions. The purchase price was $1.46 million, including a deposit of $146,000.
The contract did not proceed to completion. Both parties assert that they validly terminated the contract.
In brief, the defendant contends that he validly terminated the contract on 29 July 2015 following a failure on the part of the plaintiff to comply with a Notice to Perform issued in respect of certain orders made by Fairfield City Council (“the Council”); and the plaintiff contends that he validly terminated the contract on 19 October 2015 following a failure on the part of the defendant to comply with a Notice to Complete.
Both parties claim to be entitled to the deposit. The plaintiff says that…

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: [2017] NSWSC 399
Decision Date: 12 April 2017

CaseChat Overview and Summary

In the matter of Ebadeh-Ahvazi v Namrood, the dispute involved a contract for the sale of land. The court was asked to determine the validity of terminations made by both parties, the obligations of the vendor to perform specific works by the completion date, and whether the vendor complied with those obligations. Additionally, the court had to assess the validity of the notices to perform and to complete, and whether the vendor engaged in misleading and deceptive conduct. The ultimate question was whether the deposit should be returned to the purchaser.

The court examined whether the vendor's obligations were to be performed by the completion date stipulated in the contract or by the time of actual completion. It considered the validity of the termination notices and whether they were properly issued. Furthermore, the court assessed whether the vendor's actions constituted misleading and deceptive conduct under the Australian Consumer Law. The analysis included an examination of the contractual terms, the conduct of the parties, and the application of relevant legal principles.

The court concluded that the vendor's obligations were to be performed by the completion date specified in the contract. It found that the termination notices were validly issued and that the vendor had not complied with the contractual obligations. Additionally, the court determined that the vendor engaged in misleading and deceptive conduct, which justified the return of the deposit to the purchaser. The decision was based on a detailed interpretation of the contract, the conduct of the parties, and the application of relevant legal standards.

The final orders of the court mandated the return of the deposit to the purchaser, with interest, and further directed that the contract be considered terminated. The court also made orders concerning the costs of the proceedings.

Orders