Kalamen v Al Aubodi - [2010] NSWSC 544

CITATION: KALAMEN v AL AUBODI [2010] NSWSC 544

HEARING DATE(S): 19-21/05/2010

JUDGMENT DATE :
28 May 2010

JURISDICTION: Equity

JUDGMENT OF: Bryson AJ at 1

DECISION: 1. A declaration that on 6 May 2009 the plaintiff validly terminated the contract for the sale of land comprised in Lot 15 of Deposited Plan 860350 and known as 311 Wilson Rd, Green Valley with the first defendant and dated 5 March 2009.
2. A declaration that the first defendant has forfeited the deposit paid to the second defendant as stakeholder to the plaintiff, being the sum of $37,500
3. An order that the second defendant pay to the plaintiff the sum of $37,500 plus interest from 6 May 2009.
4. An order that the first defendant to do all that is reasonably required to cause the second defendant to release to the plaintiff the sum of $37,500 plus interest from 6 May 2009.
5. An order pursuant to section 74MA(2) of the Real Property Act 1900 (NSW) that the first defendant remove caveat number AE664381B
6. Order that the first defendant pay the plaintiff's costs of the proceedings assessed as if the hearing had taken two days.
7. Order that the first defendant pay the second defendant's costs as a submitting defendant.
8. Dismiss the cross-claim with costs.

CATCHWORDS: VENDOR and PURCHASER - Notice to Complete - Contract authorised notice to complete of 14 days - notice required completion at 2.00 pm on 14th day - HELD the notice was not a 14 day notice as authorised by the Contract but in the circumstances in fact allowed reasonably sufficient time Deposit - forfeiture - relief under Conveyancing Act 1919 s55(2A) - Purchaser could not complete in time because of delays by his Mortgage Broker - Vendor did not contribute to causes of Purchser's default - on review of facts, relief against forfeiture refused.

LEGISLATION CITED: Conveyancing Act 1919, s 55(2A)
Real Property Act 1900, s 74MA(2)

CATEGORY: Principal judgment

CASES CITED: Amaya v Estate Property Holdings Pty Ltd) [2010] NSWSC 32
Buchanan v Dunstan (2007) NSWSC 248
Butts v M’Donald (1896) 7 QLJ 68
Lohar Corporation v Dibu Pty Ltd (NSWCA
unreported 11 May 1976)
Mackay v Dick (1881) 6 App Cas 251
Mulkearns v Chandos Developments Pty Ltd (2005) 12 BPR 22,993
Secured Income Real Estate (Australia) Ltd v
St Martins Investments Pty Ltd (1979) 144 CLR 596
Sindel v Georgiou (1984) 154 CLR 661
Tabbouch v Devlin (2008) NSWSC 600
Zaccardi v Caunt (2008) NSWCA 202

PARTIES: Irene Kalamen - Plaintiff
Nassir Al Aubodi - First Defendant
Dreamhome Real Estate Pty Ltd - Second Defendant

FILE NUMBER(S): SC 2009/000289353

COUNSEL: N Allan - Plaintiff
C Lawrence - Defendant/Cross-claimant

SOLICITORS: JT Legal - Plaintiff
Simon O'Toole - First Defendant/Cross-claimant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

Friday 28 May 2010

2009/000289353 Irene Kalamen v Nassir Al Aubodi and Dreamhome Real Estate Pty Ltd t/as Richardson & Wrench Liverpool

JUDGMENT

: These Vendor and Purchaser proceedings…

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 Kalamen v Al Aubodi

Details

AGLC: Kalamen v Al Aubodi [2010] NSWSC 544
Case: [2010] NSWSC 544
Decision Date: 28 May 2010

CaseChat Overview and Summary

The case of Kalamen v Al Aubodi involved a dispute between a vendor and a purchaser of a property. The central issue was whether the notice to complete the sale was valid and whether the purchaser was entitled to relief against forfeiture of their deposit. The matter was heard in the Supreme Court of New South Wales. The legal issues centred around the interpretation of the notice to complete, specifically whether the notice allowed for a reasonable period to complete, and whether the court should exercise its discretion to grant relief against forfeiture of the deposit.

The court found that the notice to complete was not a standard 14-day notice as authorised by the contract. Instead, it required completion at a specific time on the fourteenth day, which was not a sufficient notice. Despite this, the court held that the notice did in fact allow a reasonable period to complete the sale. Regarding the deposit, the purchaser failed to complete the sale due to delays by their mortgage broker. The vendor did not contribute to this delay. Consequently, the court declined to exercise its discretion to grant relief against forfeiture of the deposit under the Conveyancing Act 1919 s55(2A).

The court's reasoning was that, although the notice to complete was technically flawed, the purchaser had effectively been given enough time to complete the sale. As for the deposit, the court found that the purchaser's inability to complete was due to factors outside the vendor's control. Therefore, the court refused to grant relief against forfeiture of the deposit. This decision underscores the importance of strict compliance with contractual terms and the court's cautious approach to relief against forfeiture in the absence of significant contribution by the vendor to the purchaser's default.

Orders