Lee v Lee - [2022] NSWSC 181

Supreme Court

New South Wales

Medium Neutral Citation: Lee v Lee [2022] NSWSC 181
Hearing dates: 24 February 2022
Date of orders: 24 February 2022
Decision date: 24 February 2022
Jurisdiction: Equity
Before: Darke J
Decision:
Summons dismissed with costs.

Catchwords:
CONTRACTS – termination of contract for the sale of land due to breach of condition by the purchaser in lodging a caveat over the subject land – whether the condition relied upon by the vendor in terminating the contract was in fact a condition – whether the vendor induced or invited the purchaser to breach the contract – whether a failure on the part of the vendor to complete the contract by date specified in notice to complete precluded the vendor for terminating for purchaser’s breach of condition – whether readiness, willingness and ability to perform one’s contractual obligations necessary to exercise an express right of termination – whether the vendor’s right to terminate was lost by effluxion of time

Cases Cited:
Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd (2009) 178 FCR 57; [2009] FCAFC 85
Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd (2016) 18 BPR 35,759; [2016] NSWCA 32
Bettini v Gye (1876) 1 QBD 183
Foran v Wight (1989) 168 CLR 385
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61
Inlon Pty Ltd v Celli SpA [2017] NSWSC 569
Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235
Willis v Crosland [2021] VSCA 320

Category: Principal judgment
Parties: Sieun Lee (Plaintiff)
Annie Lee (Defendant)
Representation:
Counsel:
Mr A Norrie and Dr J J Y Eun (Plaintiff)
Mr D A Smallbone (Defendant)
Solicitors:
Denistone Lawyers (Plaintiff)
Paul Guan & Associates (Defendant)

File Number(s): 2021/171721
Publication restriction: None

Judgment – EX TEMPORE

By a Summons filed on 15 June 2021 the plaintiff purchaser seeks a declaration that a contract for the sale of a unit in Enfield entered into the with the defendant vendor is valid and enforceable. The plaintiff also seeks an order in the nature of specific performance of the contract, and orders ancillary thereto.
The defendant resists the plaintiff's claims primarily on the ground that the contract was validly terminated pursuant to clause 9 of the contract following the plaintiff's breach of an essential term of the contract.
At the hearing, the plaintiff relied upon the affidavits of her solicitor, Seoghohn Yun, of 11 June 2021 and 21 September 2021. The defendant relied upon the affidavit of her solicitor, George Li, of 16 September 2021. There was also a statement of agreed facts which became exhibit A. The statement of agreed facts dealt with one particular aspect of the matter. There was no cross-examination of any witness.
The salient facts may be stated fairly briefly as follows. The contract for sale was entered into on about 9 February 2021. The purchase price for the unit was $600,000 (plus GST if applicable) with a deposit…

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 Lee v Lee

Details

AGLC: Lee v Lee [2022] NSWSC 181
Case: [2022] NSWSC 181
Decision Date: 24 February 2022

CaseChat Overview and Summary

The dispute between Lee and Lee, which was adjudicated by the Supreme Court of Victoria, centred on the termination of a contract for the sale of land. The vendor, Lee, terminated the contract, alleging that the purchaser, also Lee, breached a condition by lodging a caveat over the subject property. The purchaser contested the validity of the termination, arguing that the condition was not a true condition, that the vendor induced or invited the breach, and that the vendor’s failure to complete by the date specified in the notice to complete precluded the termination. The purchaser also claimed that the vendor’s right to terminate was lost by the effluxion of time.

The legal issues before the court were whether the condition relied upon by the vendor was indeed a condition, whether the vendor induced or invited the breach, whether the vendor’s failure to complete by the specified date precluded termination for the purchaser’s breach, whether readiness, willingness and ability to perform one’s contractual obligations was necessary to exercise an express right of termination, and whether the vendor’s right to terminate was lost by effluxion of time. The court had to determine the validity of the termination and whether the purchaser’s actions constituted a breach that justified termination.

The court found that the condition relied upon by the vendor was indeed a condition, not a mere warranty. It was determined that the vendor did not induce or invite the breach. The court also held that the vendor’s failure to complete by the specified date did not preclude the termination for the purchaser’s breach. Furthermore, the court clarified that readiness, willingness and ability to perform one’s contractual obligations is not necessary to exercise an express right of termination. Finally, the court found that the vendor’s right to terminate was not lost by effluxion of time.

In light of these findings, the court upheld the vendor’s right to terminate the contract. The orders of the court were that the contract for the sale of land between the parties was terminated, and the purchaser was ordered to pay the vendor’s costs of the proceedings.

Orders