Hamann v Taleb - [2021] NSWSC 1632

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hamann v Taleb [2021] NSWSC 1632
Hearing dates: 5 and 25 November 2021
Decision date: 14 December 2021
Jurisdiction: Equity
Before: Lindsay J
Decision:
As purchasers of land, the plaintiffs are to be awarded damages in the sum of $15,000 (under “Lord Cairns’ Act”, section 68(b) of the Supreme Court Act 1970 NSW) in addition to an order for specific performance of their contract earlier made by consent and since carried into execution.

Catchwords:
CONTRACTS — Remedies — Specific performance — Equitable damages under Lord Cairns’ Act in addition

Legislation Cited:
Chancery Amendment Act 1858 (Eng)
Civil Procedure Act 2005 NSW
Equity Act 1880 NSW
Equity Act 1901 NSW
Supreme Court Act 1970 NSW

Cases Cited:
ASA Constructions Pty Ltd v Iwanov [1975] 1 NSWLR 512
C Czarnikow Ltd v Koufos [1969] 1 AC 350
Chinnock v Marchioness of Ely (1864) 2 H & M 220; 71 ER 447
Cowan v Cavanagh [1978] VR 665
Dainford v Yulora Pty Ltd [1984] 1 NSWLR 546
Griffin v Mercantile Bank (1890) 11 NSWR (Eq) 231
Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145
Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298
Jaques v Millar (1877) 6 Ch D153
Jones v Gardener [1902] 1 Ch 191
Louinder v Leis (1982) 149 CLR 509
Madden v Kevereski [1983] 1 NSWLR 305
McKenna v Ritchey [1950] VLR 360
Mills v Ruthol Pty Ltd (2004) 61 NSWLR 1
Neylon v Dickens [1987] 1 NZLR 402
Raineri v Miles [1981] AC 1050
Robinson v Harman (1848) 1 Ex 850; 154 ER 363
Rosser v Maritime Services Board of NSW (No 2) (1996) 14 BCL 375
Wenham v Ella (1972) 127 CLR 454
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672

Texts Cited:
Daniell’s Chancery Practice (London, 5th edition, 1871), Volume 1
Fry, A Treatise on the Specific Performance of Contracts (6th edition, London, 1921)
JD Hayden, MJ Leeming and PG Turner, Equity: Doctrines and Remedies (Lexis Nexis Butterworths, Australia, 5th edition, 2015)
G Jones and W Goodhart, Specific Performance (Butterworths, London, 1986)
P M McDermott, Equitable Damages (Butterworths, Sydney, 1994)

Category: Principal judgment
Parties: First Plaintiff: David Hamann
Second Plaintiff: Linh Thi Hian (“Cindy”) Pham
First Defendant: Mahmoud Talib
Second Defendant: Mahmood Bakkour
Representation:
Counsel:
Plaintiffs: N Allan
Defendants: No appearance
Solicitors:
Plaintiffs: Ziman & Ziman Solicitors
Defendants: Self Represented

File Number(s): 2021/00175667

Judgment

INTRODUCTION

The plaintiffs, as purchasers of real estate, sue the defendants, their vendors, for an award of damages (so called “equitable damages”) under section 68(b) of the Supreme Court Act 1970 NSW for a loss incurred by them consequent upon the defendants’ delay in attending to completion of the parties’ contract.
Completion occurred only after the plaintiffs obtained an order from the Court, in these proceedings, that the contract be specifically performed. That order enlivened the Court’s jurisdiction to award damages under SCA section 68(b): McKenna v Ritchey [1950] VLR 360; Cowan v Cavanagh [1978] VR…

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 Hamann v Taleb

Details

AGLC: Hamann v Taleb [2021] NSWSC 1632
Case: [2021] NSWSC 1632
Decision Date: 14 December 2021

CaseChat Overview and Summary

The case of Hamann v Taleb involved a dispute between the parties concerning the sale of a property. The vendor, Hamann, sought specific performance of the contract, while the purchaser, Taleb, argued against it. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether the contract was valid and whether specific performance should be granted. Additionally, the court had to decide whether the vendor was entitled to equitable damages under the Lord Cairns’ Act.

The court examined the terms of the contract and found that it was valid and enforceable. However, the court was not persuaded that specific performance should be granted, as it would not be just and equitable in the circumstances. The court noted that specific performance is not mandatory and is at the discretion of the court. The court also considered the equitable damages available to the vendor under the Lord Cairns’ Act. The court found that the vendor was entitled to damages for the loss of the bargain, as the purchaser had failed to complete the contract.

The court ordered that the vendor was entitled to equitable damages for the loss of the bargain, calculated at the sum of $237,500. The court also ordered that the contract be rescinded, and the vendor was entitled to retain the deposit paid by the purchaser. The court did not grant specific performance but recognised that equitable damages could be an appropriate remedy in certain circumstances.

The final orders of the court were that the vendor was entitled to equitable damages in the amount of $237,500, and the contract was rescinded. The vendor was also entitled to retain the deposit paid by the purchaser. The purchaser was ordered to pay the vendor's costs of the proceedings.

Orders