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Issa v Osman (No.2)

Issa v Osman (No.2)

Case [2017] NSWSC 663 8 June 2017

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Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Issa v Osman (No.2) [2017] NSWSC 663
Hearing dates: 7 April 2016, 30 January 2017, 31 January 2017, 1 February 2017
Date of orders: 08 June 2017
Decision date: 08 June 2017
Jurisdiction: Common Law
Before: Garling J
Decision:
(1)   A declaration that the Contract for Sale of Land dated 20 April 2015 between the plaintiffs as vendors and the first defendant as purchaser of the land described in Folio/Identifier 1/514917 and known as 29 Boronia Road, Glenorie NSW 2147, has been validly and lawfully terminated.
(2)   Order that the second defendant remove the caveat AK182112 from the title of the property described in (1) above by 4pm Thursday 15 June 2017.
(3)   Order that the first cross-claim be dismissed.
(4)   Order that the second cross-claim be dismissed.
(5)   Order that the defendants pay the costs of the plaintiffs.
(6)   Stand over the issue of an inquiry as to damages until 9.30am on 15 June 2017 for directions.

Catchwords: CONTRACTS – contract for sale of land containing option to purchase Property – option never exercised by defendants – whether valid termination by plaintiffs possible where second defendant remained in possession of Property – whether possession barrier to plaintiffs being ready, willing and able to complete – no barrier – termination effective
CONTRACTS – whether implied term that purchase subject to purchaser obtaining finance – implied term inconsistent with express terms of contract – implied term not so obvious that it goes without saying – no implied term
PRACTICE AND PROCEDURE – whether second defendant represented by particular solicitor – second defendant denied retainer of solicitor for the conveyance
ESTOPPEL – whether plaintiffs estopped from issuing Notices to Complete to first defendant – first defendant claimed plaintiffs made representation that he would be granted extensions of time –– no such representation – specific contractual provisions contrary to asserted representation – unilateral assumption by first defendant
EQUITY – whether “common intention” or joint endeavour constructive trust arose from renovations made by second defendant to Property – renovations completed with intention that second defendant would purchase Property – Property never purchased – no common intention or joint endeavour – not unconscionable for plaintiffs to retain benefit of renovations – no evidence to determine value of renovations – no constructive trust
Legislation Cited: Legal Profession Uniform Law (NSW) No.16(a)
Cases Cited: B.P. Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266; (1977) 52 ALJR 20
Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137
Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (In Liq) [2016] NSWCA 165
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337
Daniel Behman v Tarek Behman [2015] NSWSC 1787
Donaldson v Natural Springs Australia Ltd [2015] FCA 498
Donis v Donis (2007) 19 VR 577
Heimann v Commonwealth (1938) 38 SR (NSW) 691
Johnson Matthey v AC…

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 Issa v Osman (No.2)

Details

AGLC: Issa v Osman (No.2) [2017] NSWSC 663
Case: [2017] NSWSC 663
Decision Date: 08 June 2017

CaseChat Overview and Summary

The case of Issa v Osman (No.2) involved a dispute over a contract for the sale of land, which included an option for the defendants to purchase the property. The plaintiffs sought to terminate the contract, arguing that the second defendant's continued possession of the property did not constitute a barrier to their ability to complete the sale. The defendants contested the termination and raised various other defences, including an implied term for finance, representation regarding extensions of time, and the establishment of a constructive trust over the property. The matter was heard and determined by the Supreme Court of Victoria.
The primary legal issues before the court were whether the plaintiffs could validly terminate the contract despite the second defendant's possession of the property, whether an implied term existed regarding finance, whether an estoppel or representation applied, and whether a constructive trust arose over the property due to renovations made by the second defendant. The court needed to consider the express terms of the contract, the principles of equity, and the evidence presented by both parties.
The court found that the second defendant's possession of the property did not prevent the plaintiffs from being ready, willing, and able to complete the sale, and thus, the termination was effective. The court also held that there was no implied term regarding finance, as it was inconsistent with the express terms of the contract and not so obvious that it went without saying. Furthermore, the court rejected the estoppel claim, as there was no representation made by the plaintiffs that would have estopped them from issuing Notices to Complete. Lastly, the court determined that no common intention or joint endeavour constructive trust arose from the renovations, as there was no unconscionability in the plaintiffs retaining the benefit of the renovations and no evidence to determine their value.
The court ordered that the termination of the contract was valid and effective, and that the plaintiffs were entitled to proceed with the sale of the property. The defendants' other claims were dismissed.

Orders