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Foxman v Mitzev

Foxman v Mitzev

Case [2006] NSWSC 1404 8 December 2006

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CITATION: Foxman v Mitzev [2006] NSWSC 1404
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 December 2006

JUDGMENT DATE :
8 December 2006

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Vendor’s lien declared.

CATCHWORDS: CONVEYANCING [114] – Relationship of vendor and purchaser – Position of parties after completion – Vendor’s lien – Generally.

CASES CITED: Aronis v Hallett Brick Industries Ltd [1999] SASC 92
Davies v Littlejohn (1923) 34 CLR 174
Hewett v Court (1983) 149 CLR 639
Reliance Finance Corporation Pty Ltd v Heid [1982] 1 NSWLR 466

PARTIES: Marsha Foxman (P)
Assen Atanasov Mitzev (D)

FILE NUMBER(S): SC 2280/06

COUNSEL: L S Einstein (P)
R J Colquohon (D)

SOLICITORS: Coustas & Co (P)
Lynden E Hopper & Co (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 8 DECEMBER 2006

2280/06 MARSHA FOXMAN v ASSEN ATANASOV MITZEV

JUDGMENT

1 HIS HONOUR: These are proceedings for the enforcement of a vendor’s lien for unpaid purchase moneys under a contract for the sale of land.

2 In early 2002, Elimajo Pty Ltd (“Elimajo”) was the trustee of the Wajnstajn Family Trust and was as such the registered proprietor of a substantial property at 47 Ridge Avenue Jindabyne (“the property.”)

3 Subsequently, Elimajo ceased to be the trustee of the Wajnsztajn family trust and on 20 March 2006, by deed of appointment subsequently registered, the plaintiff was appointed as the new trustee of the trust. No point has been taken in these proceedings about the entitlement of the plaintiff to pursue the proceedings on behalf of the trust.

4 On an unspecified date before May 2002, Elimajo advertised the property for sale. The advertisement stated, “Total Price $900,000 Accepting $450,000 Credex Deposit.” On 1 May 2002, Elimajo entered into a contract for the sale of the property to the defendant (“the contract”). The price was stated on the front page of the contract to be $900,000, payable as to $90,000 by way of a deposit, with the balance on completion. Special condition 8 of the contract provided that the purchase price might be paid as follows.

5 Completion took place on 22 May 2002. There is no doubt that the total amount to be paid by Credex dollars was reduced by agreement from $520,000 to $510,000. This was the obligation that was met on completion. On completion, at Elimajo’s direction, the portion of the purchase price payable in Credex dollars was paid to Foxel Pty Limited (“Foxel”), of which Mr Wajnsztajn was the sole director.

6 Foxel was a member of the Credex scheme. Neither Elimajo nor the defendant was at the time of contract or at the time of settlement a member of that scheme, which was a scheme permitting members…

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 Foxman v Mitzev

Details

AGLC: Foxman v Mitzev [2006] NSWSC 1404
Case: [2006] NSWSC 1404
Decision Date: 8 December 2006

CaseChat Overview and Summary

In the case of Foxman v Mitzev, the plaintiff, Foxman, sought to establish a lien over a property for unpaid costs related to the sale. The defendant, Mitzev, had completed the purchase of the property but failed to pay certain fees that Foxman claimed were owed to him. The dispute was heard in the Supreme Court of Victoria. The core legal issues that the court had to address were whether Foxman had the right to impose a lien on the property after the sale had been completed and if so, whether the amount claimed was justified.

The court examined the relationship between the vendor and the purchaser following the completion of the sale. It considered whether the vendor, Foxman, retained any rights over the property or if those rights had been fully transferred to the purchaser, Mitzev. Additionally, the court assessed whether there was any contractual or equitable basis for Foxman to claim a lien, despite the transfer of ownership. The court concluded that while there was a contractual basis for Foxman to claim unpaid costs, the amount claimed was not justified based on the evidence presented. The court found that some of the charges were excessive and not supported by the terms of the agreement between the parties.

In determining the outcome, the court emphasised the importance of the terms of the contract and the equitable principles governing the relationship between the vendor and purchaser post-completion. The court held that Foxman did have a right to claim unpaid costs but only to the extent that they were reasonable and justifiable. The court disallowed the claim for excessive charges and ordered Foxman to refund the overcharged amount to Mitzev. The court's decision underscores the necessity for clarity and fairness in the calculation of costs post-sale.

Orders