Reported Decision: 69 NSWLR 452(2007) NSW ConvR 56-179
New South Wales
Court of Appeal
CITATION: Iannello & Anor. v. Sharpe [2007] NSWCA 61 HEARING DATE(S): 13 March 2007
JUDGMENT DATE:
23 March 2007JUDGMENT OF: Hodgson JA at 1; Santow JA at 40; Basten JA at 41 DECISION: 1. Appeal allowed. 2. Orders of the primary judge set aside, and in lieu thereof: (a) judgment for the purchaser on the vendors’ claim. (b) judgment for the vendors on the purchaser’s cross-claim. (c) subject to any previous orders, vendors to pay one-half the purchaser’s costs of the proceedings below. 3. Purchaser to pay the vendors’ costs of the appeal, and to have a certificate under the Suitors’ Fund Act if otherwise eligible. CATCHWORDS: CONVEYANCING - Relationship between vendor and purchaser - Creation of contract by exchange of counterparts - Counterpart signed by purchaser altered by purchaser's solicitor without authority - Whether alterations material - Provision as to payment of part of deposit in the event of default - Whether a penalty. CASES CITED: Ashdown v. Kirk [1999] 2 Qd.R. 1
Luu v. Sovereign Developments Pty. Limited [2006] NSWCA 40
Romanos v. Pentagold Investments Pty. Limited (2003) 217 CLR 367PARTIES: Michael Iannello and Anna Iannello - appellants
Malcolm Sharpe - respondentFILE NUMBER(S): CA 40480/06 COUNSEL: Mr. M. Orlov for the appellants
Mr. G. Inatey SC with Mr. E.A. Hyde for respondentSOLICITORS: Verekers Lawyers, Sydney for appellants
Malcolm Johns & Co., Sydney for respondentLOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC2896/05 LOWER COURT JUDICIAL OFFICER: Windeyer J LOWER COURT DATE OF DECISION: 13 July 2006 LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 713
CA 40480/06
SC 2896/05Friday 23 March 2007HODGSON JA
SANTOW JA
BASTEN JA
1 HODGSON JA: On 13 July 2006, Windeyer J gave his decision in proceedings in which the appellants (the vendors) had sued the respondent (the purchaser) claiming among other things what was described as the balance of the 10% deposit under a contract of sale between the vendors and the purchasers; and in which the purchaser had cross-claimed for $225,000.00 which he had paid in connection with a purported contract of sale. The primary judge gave judgment for the purchaser on the vendors’ claim, and gave judgment for the purchaser on the cross-claim against the vendors for $225,000.00, and subject to any existing orders, ordered the vendors the pay the purchaser’s costs of the proceedings.
2 The vendors have appealed from those orders.
CIRCUMSTANCES
3 The case arises out of the purported entry into a contract for the sale by the vendors to the purchaser of a house at Hunters Hill for a price of $4.5 million, by exchange of counterpart contract documents on 4 April 2003 at the office of the vendors’ solicitors. At the time of this exchange, $225,000.00 was paid as a deposit.
4 The documents as exchanged were in the same terms, but the evidence established…
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- AGLC
- Iannello and Anor. v Sharpe [2007] NSWCA 61
- Case
- [2007] NSWCA 61
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine two principal legal issues. First, whether alterations made by the purchaser's solicitor to a counterpart of the contract, without the purchaser's express authority, rendered the contract void. Second, whether a provision stipulating that part of the deposit would be forfeited in the event of default constituted an unenforceable penalty.
The Court of Appeal held that the alterations made by the purchaser's solicitor were not material and did not vitiate the contract. The court reasoned that the solicitor had implied authority to make such minor amendments as were usual in conveyancing practice. Regarding the deposit provision, the court found that it was not a penalty, as it represented a genuine pre-estimate of loss. Consequently, the appeal was allowed, the primary judge's orders were set aside, and judgment was entered for the purchaser on the vendors' claim and for the vendors on the purchaser's cross-claim. The orders concerning costs were also varied.
Orders
Orders of the court
1. Appeal allowed. 2. Orders of the primary judge set aside, and in lieu thereof: (a) judgment for the purchaser on the vendors' claim. (b) judgment for the vendors on the purchaser's cross-claim. (c) subject to any previous orders, vendors to pay one-half the purchaser's costs of the proceedings below. 3. Purchaser to pay the vendors' costs of the appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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