Gogard Pty Ltd v Satnaq Pty Ltd - [1999] NSWSC 1283

CITATION: Gogard Pty Limited v Satnaq Pty Limited [1999] NSWSC 1283 revised - 26/06/2000

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 2290/98

HEARING DATE(S): 31/08/1999, 01/09/1999, 02/09/1999, 24/09/1999

JUDGMENT DATE:
23 December 1999

PARTIES :

Gogard Pty Limited (Plaintiff)
Satnaq Pty Limited (Defendant

JUDGMENT OF: Santow J

COUNSEL : G P George (Plaintiff)
S T White (Defendant)

SOLICITORS: L G Parker & Co (Plaintiff)
Davis O'Neill Sistrom (Defendant)

CATCHWORDS: REAL PROPERTY — Contract of Sale — Making time of the essence — Failure to complete — Entitlement to issue notice to complete — Nature of a requisition — Requisitions as to minor encroachments such as awning, party wall and air-conditioning unit — Error or mis-description and contractual stipulations — Timing for and right to make requisitions under contract and by statute — Effect of Schedule 2 of Conveyancing (Sale of Land) Regulations 1995 — Recovery of deposit under s55 of Conveyancing Act 1919 (NSW) — Relevance of availability of specific performance against purchaser — Factors going to court’s discretion — Set-off against forfeited deposit of recoverable costs and expenses so injured party placed in same situation so far as money can do as if contract performed.

ACTS CITED: Conveyancing Act 1919 (NSW) s13, s55, S88BB, s183
Encroachment of Buildings Act

CASES CITED: A A Jones & Son Pty Limited v Weeden (1964) 82 WN(NSW) 326
Abraham v Mallon (1975) 1 BPR 9157
Australasian Performing Rights Association Limited v Austarama Television Pty Ltd [1972] 2 NSWLR 467
Bennett v Stuart (1927) 27 SR(NSW) 317
Blacktown City Council v Fitzgerald and Ors (1990) NSW ConvR 59,032
Braidotti v Queensland City Properties Limited (1991) 172 CLR 293
Carpenter v McGrath (1996) 40 NSWLR 39
Ciavarella v Balmer [1983] 2 NSWLR 439
Clarke v Dilberovic (1982) NSW ConvR 55-083
Clowes Developments (UK) Limited v Mulchinock [1998] 1 WLR 42
Clurstock Pty Limited v Timanu Pty Limited (1988) NSW Conv R 57,826
Florencio Delgado v Walker Developments Pty Limited (Bryson J, NSWSC, 18 July 1989, unreported)
Godfrey Constructions Pty Limited v Kanagra Park Pty Limited (1972) 128 CLR 529
Hooker Town Developments Pty Ltd v Director of War Service Homes (1973) 47 ALJR 320
Huber v Conroy (1982) 1 NSWLR 143
Jampco Pty Limited v Camerson (No 2) (1985) 3 NSWLR 391
Johns v Deacan (English CA, , 23 January 1985, unreported)
Jones v Dunkel (1958) 101 CLR 298
Joscelyne v Nissen [1970] 2 QB 86
Lucas & Tait (Investments) Pty Limited v Victoria Securities Limited [1973] 2 NSWLR 268
Mallet v Jones [1959] VR 122
Mayer v Vitale (1981) 2 BPR 9162
Mearns v Parras Holdings Pty Ltd (1994) NSW ConvR 60,025
McKenzie v Coulson (1869) LR 8 Eq 368
Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286
Payne v Parker (1976) 1 NSWLR 191
Pratt v Hawkins (1991) 32 NSWLR 319
Re Barr’s Contract [1956] Ch 551
Re Ford and Hill (1879) 10 Ch D 365
Rossco Developments Pty Limited v O’Halloran and Anor (1980) 29 ACTR 1
Smilie Pty Limited v Bruce…

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: [1999] NSWSC 1283
Decision Date: 23 December 1999

CaseChat Overview and Summary

Gogard Pty Ltd brought an action against Satnaq Pty Ltd in the Supreme Court of New South Wales, claiming relief in relation to a contract of sale of real property. The primary issue was whether Gogard Pty Ltd was entitled to forfeit the deposit paid by Satnaq Pty Ltd, due to the latter's failure to complete the sale on the stipulated date. The secondary issues involved the nature and timing of requisitions regarding minor encroachments on the property, and the availability of specific performance as an alternative remedy.

The court held that Gogard Pty Ltd was entitled to forfeit the deposit due to Satnaq Pty Ltd's failure to complete the sale within the agreed time. It was determined that making time of the essence in the contract allowed for the forfeiture of the deposit. The court also found that the requisitions made by Gogard Pty Ltd regarding minor encroachments were not invalid merely because of an error or mis-description. Moreover, the statutory provisions under the Conveyancing (Sale of Land) Regulations 1995 did not apply to prevent the forfeiture of the deposit. The court further held that the availability of specific performance did not preclude the forfeiture of the deposit, as it was not an exclusive remedy. The court exercised its discretion in ordering that the forfeited deposit be set off against the costs and expenses incurred by Gogard Pty Ltd, ensuring that Satnaq Pty Ltd was not unjustifiably enriched.

The court ordered that the deposit paid by Satnaq Pty Ltd be forfeited to Gogard Pty Ltd and that the costs and expenses incurred by Gogard Pty Ltd be set off against the forfeited deposit. The court further ordered that the set-off amount be paid to Gogard Pty Ltd, ensuring that Satnaq Pty Ltd was not unjustly enriched.

Orders