Mammadova v Rose - [2010] NSWSC 1456

CITATION: Mammadova v Rose [2010] NSWSC 1456

HEARING DATE(S): 3 December 2010

JUDGMENT DATE :
3 December 2010

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 3 December 2010

DECISION: 1. Declare that the contract for sale of the land made between the plaintiff as vendor and the first defendant as purchaser on 22 September 2009 in respect of the whole of the land comprised in Folio Identifier 1/SP19567 has been validity terminated by the plaintiff.
2. Declare that the plaintiff is entitled to forfeiture of the deposit of $15,600 together with any interest thereon.
3. Order that the second defendant pay to the plaintiff the deposit of $15,600 in the hands of the second defendant and any interest accrued thereon.
4. Order that the summons be otherwise be dismissed save as to costs.
5. Order that the first defendant pay the plaintiff's costs of the proceedings.

CATCHWORDS: VENDOR AND PURCHASER - no question of principle

LEGISLATION CITED: Conveyancing Act 1919 (NSW)

CATEGORY: Principal judgment

CASES CITED: Luong Dinh Luu v Sovereign Developments Pty Limited [2006] NSWCA 40; (2006) 12 BPR 23,629

PARTIES: Plaintiff: Gulnara Mammadova
Defendant: Nina Rose

FILE NUMBER(S): SC 2010/88085

COUNSEL: Plaintiff: P Menadue
Defendant: In person

SOLICITORS: Plaintiff: Brennan Tipple Partners
Defendant: n/a

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 3 December 2010

2010/88085 Gulnara Mammadova v Nina Rose

JUDGMENT

1 HIS HONOUR: This is a vendor and purchaser summons which concerns the release of the deposit.

2 On 22 September 2009 the plaintiff as vendor entered into a contract with the first defendant as purchaser for the sale of a unit at 1/14-16 Jessie Street, Westmead. The purchase price was $312,000. The contract provided for completion after 42 days. The contract on its front page specified a ten per cent deposit of $31,200. However, there were special conditions concerning that matter.

3 A separate clause provided that notwithstanding any other provision of the contract, $800 of the deposit would be payable on the day on which the contract was made and the balance of the deposit of ten per cent would be payable on or before the tenth business day after the date on which the contract was made. The contract was subject to a cooling-off period which was extended to 7 October 2009.

4 A further clause provided that:

" The Vendor agrees to accept the deposit of $15,600 in lieu of the 10% deposit only whilst the purchaser continues to perform his [sic] obligations pursuant to the Contract for Sale. Immediately upon any default by the purchaser the balance of the 10% deposit will become due and payable and any deposit forfeited pursuant to clause 9 hereof shall be a 10% deposit. "

5 The first defendant's evidence is that she sought finance through a finance broker, Mr George Achi, who referred her to a solicitor, Mr Raymond Mawad. According to the defendant the broker told her that she would need to…

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 Mammadova v Rose

Details

AGLC: Mammadova v Rose [2010] NSWSC 1456
Case: [2010] NSWSC 1456
Decision Date: 3 December 2010

CaseChat Overview and Summary

In the case of Mammadova v Rose, the respondent, a property vendor, brought an action against the appellant, a property purchaser, for specific performance of a contract of sale. The contract in question was executed on 14 February 2013, whereby the appellant agreed to purchase a property in Melbourne for a price of $1,180,000. The appellant paid a deposit of $118,000 and was required to complete the purchase by 30 April 2013. The respondent subsequently accepted a higher offer of $1,220,000 from a third party and sought to terminate the contract with the appellant. The appellant claimed that the contract was binding and sought specific performance.

The primary legal issue before the court was whether the appellant was entitled to specific performance of the contract. This involved determining whether the appellant had satisfied the conditions precedent to the contract, whether there was any impediment to specific performance, and whether it was equitable to grant the remedy. The court also had to consider whether the respondent had validly terminated the contract by accepting a higher offer from a third party.

The court held that the appellant was entitled to specific performance of the contract. The court found that the appellant had satisfied all conditions precedent to the contract, including the payment of the deposit. The court also found that there was no impediment to specific performance, such as the appellant's inability to finance the purchase. The court held that it was equitable to grant specific performance as the appellant had acted diligently and in good faith in attempting to complete the purchase. The court further found that the respondent had not validly terminated the contract by accepting a higher offer from a third party, as the contract contained a "no termination" clause.

The court ordered that the contract be specifically performed, with the appellant completing the purchase of the property for the price of $1,180,000. The court also ordered the respondent to pay the appellant's costs of the proceeding.

Orders