Lucantonio v Ciofuli - [2003] NSWSC 1058

CITATION: LUCANTONIO v. CIOFULI [2003] NSWSC 1058 revised - 24/02/2004

HEARING DATE(S): 17, 18 & 19/09/2003

JUDGMENT DATE:
21 November 2003

JURISDICTION:
EQUITY

JUDGMENT OF: Bryson J at 1

DECISION: Judgment for the defendant with costs [91]

CATCHWORDS: VENDOR and PURCHASER - recovery of deposit - discretion of Court to order repayment of deposit - purchaser bought after advertisement &c. notified "DA Approval" - purchaser sought compensation on ground that development as approved was not feasible - no contractual warranty - on review of extensive expert evidence it was found that development was feasible and difficulties were not abnormal for development project - on review of circumstances, the Court declined relief against forfeiture of the deposit under s.55(2A) CA 1919.

LEGISLATION CITED: Conveyancing Act 1919
Conveyancing (Amendment) Act 1930
Disability Discrimination Act 1992
Fair Trading Act 1987
Law of Property Act 1925 (U.K.)
Supreme Court Act 1970

CASES CITED: AA Jones & Son Pty Ltd v. Weeden [1964-5] NSWR 1780
Bernard & Anor v. Weingarth & Anor (1997) 8 BPR [15,651]
Butcher v. Lachlan Elder Realty [2002] NSWCA 237
Carpenter v. McGrath (1996) 40 NSWLR 39
Clarke v. Dilberovic (1982) NSW Conv R 55-083
Delgado v. Walker Developments Pty Ltd (Bryson J 18 July 1989 unreported)
Lucas & Tait (Investments) Pty Ltd v. Victoria Securities Ltd [1973] 2 NSWLR 268
Pratt v. Hawkins (1991) 32 NSWLR 319 at 323 - 325
Romanos v. Pentagold Investments Pty Ltd [2003] HCA 58
Terry v. Permanent Trustee Australia Ltd (1995) 6 BPR [14,091] at 14,106-14,107
Universal Corporation v. Five Ways Properties [1979] 1 All ER 552
Wilson v. Kingsgate Mining Industry Pty Ltd [1973] 2 NSWLR 713

PARTIES :
Dean Paul Lucantonio and Paulette Lucantonio (P)
Lucia Ciofuli (D)

FILE NUMBER(S): SC 6073/2001

COUNSEL: D.L. Warren (P)
M.L. Brabazon & M. Hirshorn (D)

SOLICITORS: Otto Stichter & Associates (P)
Christopher Balomatis (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

FRIDAY 21 NOVEMBER 2003

6073/2001 LUCANTONIO v. CIOFULI

JUDGMENT

1 HIS HONOUR: The plaintiffs as purchasers and the defendant as vendor entered into an agreement in writing on 3 November 2001 for the sale of property known as 43 Majors Bay Road, Concord. The sale was not completed and the vendor later sold and transferred the property to another purchaser. The purchasers commenced these proceedings on 21 December 2001 and claimed a number of remedies. Specific performance can no longer be pursued as in a practical sense it was defeated by the outcome of interlocutory proceedings in June 2002 in which the purchasers were unable to maintain their caveat or restrain the vendors from completing the second sale. The vendor’s claims now appear in the Amended Summons of 25 October 2002. The principal claims are Claims 1 and 3 to establish that the vendors have terminated the Contract of Sale and are contractually entitled to return of the deposit, and Claim 4 for an order that the deposit be repaid with interest under s.55(2A) of the Conveyancing Act

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 Lucantonio v Ciofuli

Details

AGLC: Lucantonio v Ciofuli [2003] NSWSC 1058
Case: [2003] NSWSC 1058
Decision Date: 21 November 2003

CaseChat Overview and Summary

The case of Lucantonio v Ciofuli involved a dispute between a vendor and a purchaser over the recovery of a deposit. The purchaser, Ciofuli, sought compensation from the vendor, Lucantonio, on the grounds that the development as approved was not feasible. The case was heard in the Supreme Court of New South Wales. The central issue was whether the Court had the discretion to order the repayment of the deposit to the purchaser under s.55(2A) of the Conveyancing Act 1919. The purchaser argued that due to the alleged infeasibility of the development, the contract should be set aside and the deposit returned.

The court considered the arguments presented by both parties, focusing particularly on the nature of the approval and the feasibility of the development. Extensive expert evidence was reviewed, which concluded that the development as approved was indeed feasible and that the difficulties encountered were not abnormal for a development project of this nature. The court determined that there was no contractual warranty regarding the feasibility of the development, and that the purchaser had not provided sufficient grounds for the Court to exercise its discretion to order the return of the deposit. The Court held that the circumstances did not warrant relief against forfeiture of the deposit under s.55(2A) CA 1919.

The Supreme Court of New South Wales, therefore, ruled in favour of the vendor, Lucantonio, and declined to order the repayment of the deposit to the purchaser, Ciofuli. The Court found that the purchaser had not demonstrated that the development was unfeasible, and therefore, the contract could not be set aside. The decision underscores the importance of proving infeasibility and the limited scope of the Court's discretion in such matters. The case serves as a reminder to purchasers to carefully assess the feasibility of developments and to vendors of the limited contractual obligations regarding such matters.

Orders