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Golding v Vella

Golding v Vella

Case [2001] NSWSC 567 9 July 2001

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Reported Decision:
(2003) NSW ConvR 56-044

New South Wales

Supreme Court

CITATION: Golding v Vella [2001] NSWSC 567

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3043/99

HEARING DATE(S): 31/05/01, 01/06/01

JUDGMENT DATE:
9 July 2001

PARTIES :

Mark John Golding - Plaintiff
Frederick Anthony Vella - First Defendant
Therese Marianne Vella - Second Defendant

JUDGMENT OF: Barrett J

COUNSEL : Mr G.P. McNally - Plaintiff
Mr G.A. Seib - Defendants

SOLICITORS: Matthews Dooley & Gibson - Plaintiff
Williams Boxsell Georgas - Defendants

CATCHWORDS: CONVEYANCING - Matters arising between contract and conveyance - Purported termination by purchasers for breach by vendor - Purported termination relied upon by vendor as wrongful repudiation - Whether vendor can reecover unpaid balance of deposit after termination - Whether purchasers entitled to relief under s.55(2A) Conveyancing Act 1919 - CONVEYANCING - Formation of contract - Real estate salesperson purports to effect exchange of contracts - No authority of purchasers to do so - Purchasers present but not participating in supposed exchange - Salesperson delivers part signed by vendor to purchasers' solicitors - When exchange effected

LEGISLATION CITED: Conveyancing Act 1919
Property, Stock and Business Agents Act 1941

CASES CITED: Castle Hill Tyres Pty Ltd v Luxspice Pty Ltd (1996) 7 BPR 14,959
Clarke v Ramuz [1891] 2 QB 456
Alexus Pty Ltd v Pont Holdings Pty Ltd (2000) 10 BPR 18,371
Nelson v Bellamy [2000] NSWSC 182
Flight v Booth (1834) 1 Bing (NC) 370
Bot v Ristevski [1981] VR 120
Kirk v Ashdown [1999] 2 QdR 1
Socratous v Koo (1993) 6 BPR 13,226
Kylsilver Pty Ltd v One Australia Pty Ltd [2001] NSWSC 226
Lucas & Tait (Investments) Pty Ltd v Victoria Securities Ltd [1973] 2 NSWLR 268
Benyon v Wongala Holdings Pty Ltd (1999) 9 BPR 16,781
Eighth SRJ Pty Ltd v Merity (1997) 7 BPR 15,189
Mearns v Parris Holdings Pty Ltd (1994) 6 BPR 13,677
Clurstock v Timanu Pty Ltd (1988) NSW ConvR 55-419
Eccles v Bryant and Pollock [1948] 1 Ch 93
Sindel v Georgiou (1984) 154 CLR 661
Domb v Isoz [1980] 1 All ER 942
Harris v Fuseoak Pty Ltd (1995) 7 BPR 14,511
Mallett v Jones [1959] VR 122
Terry Pfeiffer Real Estate Pty Ltd v Connors [2000] NSWSC 452
"The Standard Contract for Sale of Land in New South Wales", Butt, 2nd ed, 1998
"The Law of Vendor and Purchaser", Stonham, 1964

DECISION: 1. Contract for sale of land between plaintiff as vendor and defendants as purchasers was validly terminated by the plaintiff; 2. Plaintiff repay to defendants $1,337.50, being the part of the deposit paid by the defendants; 3. Defendants pay to plaintiff damages of $8,199.40 for breach of contract.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY, 9 JULY 2001

3043/1999 - GOLDING v VELLA & ANOR

JUDGMENT

HIS HONOUR:
Background

1 The plaintiff, being the vendor under a terminated contract for the sale of land, claims by his Amended Summons a declaration that that contract…

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 Golding v Vella

Details

AGLC: Golding v Vella [2001] NSWSC 567
Case: [2001] NSWSC 567
Decision Date: 9 July 2001

CaseChat Overview and Summary

In the matter of Golding v Vella, the dispute centred on the validity of a termination of a property sale contract and the right of the vendor to recover an unpaid deposit balance following the termination. The case was heard in the Supreme Court of New South Wales. The vendor, Golding, sought to recover the unpaid balance of the deposit from the purchasers, Vella, after terminating the contract for breach. The purchasers, in turn, argued that the vendor's termination was a wrongful repudiation of the contract, and sought relief under section 55(2A) of the Conveyancing Act 1919 (NSW).

The primary legal issue before the court was whether the vendor was entitled to terminate the contract for breach and subsequently recover the unpaid deposit, or if the purchasers could claim relief under section 55(2A) of the Conveyancing Act. The court had to determine whether the termination was valid and if it constituted a wrongful repudiation by the vendor. Furthermore, the court had to consider the circumstances surrounding the exchange of contracts, specifically whether a valid exchange occurred when a real estate salesperson purported to effect the exchange of contracts without proper authority from the purchasers, and whether the contract was properly formed when the purchasers were not present or participating in the supposed exchange.

The court held that the vendor was entitled to terminate the contract for breach and recover the unpaid deposit. The court found that the purported exchange of contracts was not valid, as the real estate salesperson lacked the authority to bind the purchasers to the contract. Additionally, the court determined that the purchasers were not present or participating in the supposed exchange, and therefore, the contract was not properly formed. Consequently, the court ruled that the vendor's termination was valid and that the purchasers were not entitled to relief under section 55(2A) of the Conveyancing Act.

The court ordered that the vendor, Golding, was entitled to recover the unpaid balance of the deposit from the purchasers, Vella. The court also ruled that the purchasers were not entitled to relief under section 55(2A) of the Conveyancing Act.

Orders