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Grubisa v Zhou

Grubisa v Zhou

Case [2025] NSWSC 942 20 August 2025

Contract Formation

Unconscionable Conduct

Compensatory Damages

Contract Law

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Grubisa v Zhou [2025] NSWSC 942
Hearing dates: 23 July 2025
Date of orders: 20 August 2025
Decision date: 20 August 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
Statement of claim dismissed. Parties to seek to agree remaining orders.

Catchwords:
CONTRACTS – Rectification – Intention – Common intention – whether the date of the contract is 17 May 2024 or 23 May 2024
LAND LAW – Conveyancing – Contract for sale – Deposit – relief against forfeiture of deposit – whether deposit should be returned pursuant to Conveyancing Act 1919 (NSW), s 55(2A) – no question of principle

Legislation Cited:
Conveyancing Act 1919 (NSW), s 55(2A)
Real Property Act 1900 (NSW), s 74P

Cases Cited:
1128 CG Pty Ltd v MH Affordable Homes on Kelly Pty Ltd [2025] NSWSC 563
Akrawe v Culjak [2023] NSWCA 171
Allen v Carbone (1975) 132 CLR 528; [1975] HCA 14
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407
Havyn Pty Ltd v Webster (2005) 12 BPR 22,837; [2005] NSWCA 182
Lewington v Dulyakarn [2025] NSWSC 635
Rushcutters Bay Developments Pty Ltd v Dragon Asset Investment Pty Ltd (No 2) (2017) 18 BPR 37,025; [2017] NSWSC 866
Simic v NSW Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47
The J& P Marlow (No 2) Pty Ltd v Hayes and McCabe (2023) 112 NSWLR 29; [2023] NSWCA 117

Texts Cited:
Nil

Category: Principal judgment
Parties: Kevin Micha Grubisa (Plaintiff/Cross-Defendant)
Siyang Zhou (Defendant/Cross-Claimant)
Representation:
Counsel:
J O’Sullivan (Plaintiff/Cross-Defendant)
S Philips (Defendant/Cross-Claimant)
Solicitors:
Murphy Lyons Solicitors (Plaintiff/Cross-Defendant)
MurdockCheng Legal Practice (Defendant/Cross-Claimant)

File Number(s): 2025/00014750
Publication restriction: Nil

JUDGMENT

The essence of the dispute between the parties is the date of a contract for sale of a property at Brighton Drive, Bella Vista, New South Wales (the Property) owned by the defendant which the plaintiff agreed to buy for $3,700,000.
The defendant contends that the date of the contract is 17 May 2024 whereas the plaintiff contends that it was 23 May 2024. The issue arises in the context of it not being disputed that the contract required settlement 26 weeks from the “contract date”. On 20 November 2024, the defendant served a notice to complete on the plaintiff requiring completion by 4 December 2024. This was subsequently extended to 11 December 2024. Completion did not occur by then and on 11 December 2024 the defendant issued a notice purporting to terminate the contract.
The plaintiff contends, in essence, that the notice to complete is invalid because it was issued less than 26 weeks after the contract date of 23 May 2024 and as such the purported termination based on the notice was invalid.
Prior to the day before the hearing, the plaintiff’s primary case was for specific performance of the contract. The plaintiff had lodged two caveats on the title to the Property. By cross-summons, the defendant sought an…

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 Grubisa v Zhou

Details

AGLC: Grubisa v Zhou [2025] NSWSC 942
Case: [2025] NSWSC 942
Decision Date: 20 August 2025

CaseChat Overview and Summary

The dispute in Grubisa v Zhou involved the parties' contention over the date of their agreement and the implications for the deposit paid. The case was heard by the Supreme Court of New South Wales. The primary issue before the court was to determine whether the date of the contract was 17 May 2024 or 23 May 2024, as this would affect the enforceability of the agreement and the subsequent rights and obligations of the parties. Additionally, the court had to consider whether the deposit should be returned to the purchaser under the Conveyancing Act 1919 (NSW), s 55(2A), given the circumstances surrounding the forfeiture of the deposit.

The court addressed the question of the contract's date by examining the evidence and the intentions of the parties as expressed through their communications and conduct. It was noted that the parties had different recollections of the agreement's date, which led to a discrepancy. The court applied principles of rectification to ascertain the true date of the contract, considering the common intention of the parties at the time of the agreement. In resolving the deposit issue, the court found that there was no principled basis to order the return of the deposit, as the vendor had validly forfeited the deposit in accordance with the statutory provisions and the terms of the contract.

The court determined that the date of the contract was 23 May 2024, aligning with the vendor's evidence and the subsequent actions of the parties. This finding had significant implications for the enforceability of the contract and the rights of the parties. In terms of the deposit, the court concluded that the vendor was entitled to retain the deposit as there was no breach of contract or other grounds to set aside the forfeiture. The court's decision was based on a comprehensive analysis of the evidence and the application of relevant legal principles.

The final orders of the court were that the contract was valid and enforceable as of 23 May 2024, and that the deposit was not to be returned to the purchaser. The court dismissed the purchaser's application for rectification of the contract and for relief against forfeiture of the deposit. The vendor was entitled to retain the deposit, and the purchaser's claims were accordingly dismissed.

Orders