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Gayed v Yuan

Gayed v Yuan

Case [2024] VSCA 85 6 May 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0145

SAM GAYED	First Applicant
NARDINE ELZAHABY	Second Applicant
v
MING YUAN	Respondent

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JUDGES:	BEACH and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2024
DATE OF JUDGMENT:	6 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 85
JUDGMENT APPEALED FROM:	[2023] VCC 1992 (Judge Cosgrave)

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REAL PROPERTY – Sale of land – Application for leave to appeal – Applicant purchasers repudiated contract of sale – Respondent vendor accepted repudiation and rescinded contract – Applicants sued respondent for return of deposit – Trial judge dismissed proceeding – Whether trial judge erred in considering issues without giving parties notice – Whether trial judge erred in determining that applicants’ breach of contract caused loss to respondent – Whether trial judge erred in concluding that vendor not required to give contractual notice of default to applicants – Whether applicants denied procedural fairness – Whether conduct of trial judge amounted to bias – Whether trial judge erred in determining that applicants should pay indemnity costs after rejecting respondent’s Calderbank offer – Applicants’ proposed appeal not having any real prospect of success – Application for leave to appeal refused.

Property Law Act 1958, s 49(2).

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Counsel
Applicants:		In person
Respondent:		No appearance
Solicitors
Applicant:
Respondent:	Oakfair Lawyers

BEACH JA
ORR JA:

In June 2019, the applicants entered into a contract to purchase a residential property in Balwyn (‘the property’) from the respondent. The purchase price was $3,190,000. Having paid a deposit of 10 per cent of the purchase price, the applicants were unable to complete the purchase because they could not obtain the necessary finance. The respondent accepted the applicants’ repudiation of the contract and leased the property out for some time before selling it again in October 2021 for $3,500,000.
In July 2022, the applicants commenced a proceeding in the County Court against the defendant, seeking, amongst other orders, the return of the sum of $309,000, paid as part of a deposit of $319,000.
The applicants’ proceeding was tried over four days in October 2023. On 1 December 2023, pursuant to reasons delivered on 2 November 2023[1] and 1 December 2023,[2] the trial judge made orders dismissing the applicants’ claim; entering judgment for the respondent; and ordering the applicants to pay the respondent’s costs on the standard basis up to and including 6 October 2023, and thereafter on the indemnity basis.
[1]Gayed v Yuan [2023] VCC 1992 (‘Primary Reasons’).
[2]Gayed v Yuan (No 2) [2023] VCC 2216 (‘Costs Reasons’).
The applicants now apply for leave to appeal from the judge’s orders, and a stay of the order for costs. The applicants rely on four proposed grounds of appeal. The proposed grounds are prolix and somewhat tendentious. In summary, the applicants complain that:
(1)The judge erred in considering an issue of capital gains tax without giving the parties notice that the issue might form a part of his reasoning and/or without inviting the parties to make submissions on…

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 Gayed v Yuan

Details

AGLC: Gayed v Yuan [2024] VSCA 85
Case: [2024] VSCA 85
Decision Date: 6 May 2024

CaseChat Overview and Summary

The case of Gayed v Yuan involved the applicants, purchasers of a property, who repudiated their contract of sale with the respondent, the vendor. The respondent accepted the repudiation and rescinded the contract. The applicants subsequently sued the respondent for the return of their deposit. The trial judge dismissed the proceeding, leading the applicants to seek leave to appeal the decision. The appeal centred on whether the trial judge erred in considering certain issues without giving the parties notice, whether the trial judge correctly determined that the applicants' breach of contract caused a loss to the respondent, whether the trial judge was correct in concluding that the vendor was not required to give the applicants contractual notice of default, whether the applicants were denied procedural fairness, and whether the conduct of the trial judge amounted to bias. Additionally, the applicants challenged the trial judge's determination that they should pay indemnity costs after rejecting the respondent's Calderbank offer.

The court found that the trial judge did not err in considering the issues without prior notice, as the matters were apparent from the pleadings and no prejudice resulted from this approach. Regarding the loss to the respondent, the court held that the trial judge correctly determined that the applicants' breach of contract caused the respondent to suffer a loss. The court also found no error in the trial judge's conclusion that the vendor was not required to give the applicants contractual notice of default. Furthermore, the court ruled that the applicants were not denied procedural fairness and that the conduct of the trial judge did not amount to bias. Finally, the court upheld the trial judge's decision to require the applicants to pay indemnity costs after rejecting the respondent's Calderbank offer.

Given that the proposed appeal had no real prospect of success, the application for leave to appeal was refused. The court determined that the applicants' proposed appeal did not present any significant legal issues that warranted further consideration, and thus, the appeal was dismissed.

Orders