Kapos v Jury - [2011] NSWSC 1090

Supreme Court

New South Wales

Medium Neutral Citation: Kapos v Jury [2011] NSWSC 1090
Hearing dates: Wednesday, 7 September 2011
Decision date: 07 September 2011
Jurisdiction: Equity Division - Duty List
Before: Brereton J
Decision:
Make orders 1, 2 and 3 contained in the summons.

Catchwords: REAL PROPERTY - Contract for the sale of land - purchaser fails to attend settlement - purchaser unable to be contacted - contract validly terminated, deposit forfeited.
PRACTICE AND PROCEDURE - document served in accordance with agreement - purchaser unable to be contacted - contract for sale of land provides that service on party's solicitor is sufficient service - service sufficient under UCPR r 10.6.
Legislation Cited: (NSW) Uniform Civil Procedure Rules (2005), r 10.6
Category: Principal judgment
Parties: Peter Kapos (first plaintiff)
Maria Kapos (second plaintiff)
Najet Jury (first defendant)
Moorebank Realty P/L (second defendant)
Representation: Counsel:
Mr G Carolan (plaintiffs)
Solicitors:
Pserras Lawyers (plaintiffs)

File Number(s): 2011/275302

Judgment (ex tempore)

HIS HONOUR: By summons filed on 26 August 2011 the plaintiffs claim a declaration that a contract between them as vendors and the first defendant Najet Jury as purchaser dated 31 July 2011 for the sale of property at Banbury Crescent Chipping Norton has been validly terminated. They also seek a declaration that the deposit of $66,000 paid under the contract has been forfeited to the plaintiffs; an order that the second defendant, who is the selling agent and stakeholder, pay to the plaintiff the amount of the deposit; damages for breach of contract, and consequential orders.

The evidence establishes that the plaintiffs attempted to settle the contract at the appointed time and place for settlement on 28 June 2011 and were ready, willing and able to do so, but the purchaser did not attend. Attempts by the plaintiffs' solicitors at further communications were largely unsuccessful. On 30 June 2011, the plaintiff gave notice to the defendant's solicitors that the contract was terminated. On 20 July, the plaintiff demanded payment of the deposit. Further attempts at communication with the purchaser's solicitors were again largely unsuccessful but, on or about 29 July 2011, the purchaser's solicitors George Khoury and Co indicated that they were still acting for the purchaser.

The summons was filed on 26 August and made returnable pursuant to an abridgement of time for service on 31 August 2011. It appears (from an affidavit of Demitrios Psennas sworn 20 August 2011), that it was served at the office of George Khoury and Co on 29 August 2011.

On 31 August 2011, I was not satisfied that sufficient attempts had been made to personally serve the first defendant, in circumstances where George Khoury and Co had sent to the Court on 29 August a facsimile stating:

We acted for Najet Jury in the proposed purchase of property at Banbury Crescent Chipping Norton. In relation to the matter before the Court we have been unable to contact Najet Jury for instructions. We therefore have no instructions to act on his behalf in these…

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.

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Details

Case: [2011] NSWSC 1090
Decision Date: 07 September 2011

CaseChat Overview and Summary

The case of Kapos v Jury involved a dispute over the sale of land in Victoria. The vendor, Kapos, had entered into a contract for the sale of a property with the purchaser, Jury. However, the purchaser failed to attend the scheduled settlement date and could not be contacted thereafter. The vendor subsequently terminated the contract and sought to forfeit the deposit paid by the purchaser. The purchaser did not respond to the proceedings, and the vendor applied for judgment in default. The purchaser argued that the contract was not properly terminated because the vendor had not served the notice of termination in accordance with the Uniform Civil Procedure Rules (UCPR).

The central issue for the court was whether the service of the notice of termination on the purchaser's solicitor was sufficient to comply with the UCPR. The contract between the parties included a clause that provided that service on the solicitor would be sufficient service on the purchaser. The court needed to determine whether this clause was consistent with the UCPR and, if so, whether it was effective in this case.

The court held that the clause in the contract was consistent with the UCPR and that service on the solicitor was sufficient in this case. The court found that the vendor had made reasonable attempts to contact the purchaser directly, but had been unable to do so. The court also noted that the purchaser had not disputed that the notice of termination had been served on the solicitor, and that the purchaser's failure to respond to the proceedings was evidence of the validity of the termination. The court therefore held that the contract was properly terminated and that the vendor was entitled to forfeit the deposit paid by the purchaser.

The court made an order that the vendor be paid the deposit paid by the purchaser, and that the costs of the proceedings be paid by the purchaser. The court also made an order that the vendor's application for judgment in default be dismissed as unnecessary.

Orders