Foxman v Mitzev

[2006] NSWSC 1405

CITATION:	Foxman v Mitzev [2006] NSWSC 1405 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11 - 14 December 2006
JUDGMENT DATE :	14 December 2006
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Orders made.
CATCHWORDS:	CONVEYANCING [114] – Relationship of vendor and purchaser – Position of parties after completion – Vendor’s lien – Declaration of and enforcement by judicial sale - Form of orders.
LEGISLATION CITED:	Civil Procedure Act 2005 s 100
CASES CITED:	United Travel Agencies Pty Ltd v Cain (1990) 20 NSWLR 566 3 Seton’s Forms of Judgments and Orders (7th ed, 1912) 2221 - 2225 Miller & Horsell, Equity Forms and Precedents (New South Wales) (1934) at 342 - 343
PARTIES:	Marsha Foxman (P) Assen Atanasov Mitzev (D)
FILE NUMBER(S):	SC 2280/06
COUNSEL:	L S Einstein (P) No appearance (D)
SOLICITORS:	Coustas & Co (P) Lynden E Hopper & Co (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 14 DECEMBER 2006

2280/06 MARSHA FOXMAN v ASSEN ATANASOV MITZEV

JUDGMENT

1 HIS HONOUR: I delivered my substantive judgment in this matter on 8 December 2006: Foxman v Mitzev [2006] NSWSC 1404 (“my judgment”). I indicated that a vendor’s lien would be declared over the property and that the plaintiff is entitled to enforce the lien. In [21] of my judgment I indicated that I had received submissions as to the orders to be made and directed that short minutes be brought in.

2 When the matter was debated before me on Friday, 8 December 2006 Mr Colquhoun still appeared for the defendant. He asked that the mechanism of a judicial sale as a means of enforcement of the lien be postponed for four months so that the defendant could have the opportunity of himself conducting a private sale to avoid the depressing effect on the market of a forced sale. The plaintiff objected on the ground that the defendant had long been making sporadic efforts to sell, which had come to nothing.

3 I was at first attracted to the idea of giving the defendant an opportunity to sell the property privately. However, this would have involved a complex regime of undertakings to the Court to protect the plaintiff’s position pending a private sale and in relation thereto.

4 When the matter came back before me for debate on the short minutes brought forward by Mr Einstein for the plaintiff, Mr Colquhoun was no longer in attendance, so that there was nobody present to give any undertakings on behalf of the defendant or to debate the terms of injunctive relief which might be granted against him in relation to the interim period. I was already starting to have doubts as to the appropriateness of the course of postponing the judicial sale. The fate of this course was sealed by the fact that the defendant was no longer in attendance to give undertakings to the Court or otherwise to press his application and cooperate in putting the appropriate regime into place.

5 In those circumstances, I have determined that the process of judicial sale should be set in motion unless the principal amount and interest payable under the lien are paid within 14 days, a prospect which seems remote. If that does occur, there may need to be an application to the Court as to what ought to ensue relating to the costs of the proceedings, which will still be outstanding.

6 I have been asked to appoint Mr William Hamilton, who is a chartered accountant and an experienced Company liquidator, as the person to conduct the judicial sale out of Court. In view of Mr Hamilton’s status and experience I have no hesitation in appointing him for the purpose. Evidence of his consent has been given to the Court.

7 Orders of this sort are rarely made. The form in which they ought be made was observed on by Young J, as his Honour then was, in United Travel Agencies Pty Ltd v Cain (1990) 20 NSWLR 566 at 572. As his Honour noted, an appropriate form is set out in Miller & Horsell, Equity Forms and Precedents (New South Wales) (1934) at 342 - 343. This form related to the sale of real property for council rates, but is suitable with small alterations. See also 3 Seton’s Forms of Judgments and Orders (7th ed, 1912) 2221 - 2225.

8 The form of declaration of a vendor’s lien in Seton makes it plain that it was the practice of the Court to order interest at the Chancery rate to be included as secured by the lien declared. Furthermore, it seems to me that the proceedings for the declaration of the lien and its enforcement are proceedings for the recovery of money within s 100 of the Civil Procedure Act 2005 (“the CPA”). Under the orders I shall make, the vendor’s lien will extend to interest on the unpaid moneys, and also to the costs of the proceedings.

9 In addition to proceeding to establish an entitlement to a lien, the plaintiff’s further amended statement of claim includes a prayer for damages for breach of contract and for interest on those damages. The plaintiff’s evidence establishes an entitlement to judgment for damages for breach of contract and interest. I propose to enter judgment for the plaintiff for the sum of $718,750.50, being $510,000 for damages for breach of contract and $208,750.50 for interest under s 100 of the CPA.

10 The orders to be made also include incidental orders relating to the sale, an order for costs and an order for payment out of Court to the plaintiff forthwith of the amount of $15,000 paid into Court as security for costs. There is also, of course, liberty to apply.

11 There will be orders in accordance with the short minutes of order initialled by me in place with the papers.

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19/12/2006 - Corrected the judgment date - Paragraph(s) NA