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Mehmet v Carter

Mehmet v Carter

Case [2020] NSWSC 413 17 April 2020

Repudiation & Termination

Breach of Contract

Unconscionable Conduct

Contract Law

Land Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mehmet v Carter [2020] NSWSC 413
Hearing dates: 8 - 10, 14 - 17 October 2019
Date of orders: 17 April 2020
Decision date: 17 April 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Declare that the plaintiffs are entitled to the return of the funds representing the deposit paid by them on the contract for the sale of land dated 6 July 2015 for the purchase of the property the subject of the present proceeding.
2.   Order judgment for the plaintiffs for recovery of damages in the sum of $29,855.47.
3.   Dismiss the cross claim with costs.
4.   Order that the defendants pay the plaintiffs/cross-defendants’ costs of the proceeding, including (as per the orders of the Court of Appeal) the costs of the separate question determination the subject of the proceeding before Darke J in 2017.

Catchwords:
CONTRACTS — Termination — Repudiation of contract — where purchasers raised requisitions — where plausible contentions and vendors refused to address

LAND LAW — Conveyancing — Contract for sale — Breach — Error or misdescription — Requisitions — Vendors’ obligations — Notices to complete — Purchasers’ remedies
ENVIRONMENT AND PLANNING — Heritage conservation — Protection of Aboriginal heritage — meaning of “Aboriginal object” — National Parks and Wildlife Act 1974 (NSW)
Legislation Cited: Aboriginal Land Rights Act 1983 (NSW), ss 41, 86
Competition and Consumer Act 2010 (Cth), Sch 2 (Australian Consumer Law), s 18
Conveyancing Act 1919 (NSW), ss 13, 55(1), 55(2A), 57
Electricity Supply Act 1995 (NSW), s 51
Evidence Act 1995 (NSW), ss 60, 69(2)(b), 72, 74, 78, 81, 135, 136
Evidence Amendment Act 2007 (NSW)
Fauna Conservation Act 1974 (Qld), s 7(1)
Law Reform (Law and Equity) Act 1972 (NSW), s 5
Local Government Act 1993 (NSW), s 59A
Mining Act 1992 (NSW), s 164
National Parks and Wildlife Act 1967 (NSW), ss 3(1), 33D
National Parks and Wildlife Act 1974 (NSW), ss 2A(1), 5(1), 83, 84, 85A, 86, 87, 89A, 90K(1)(b), 90Q(3)(d)
Racial Discrimination Act 1975 (Cth)
Real Property Act 1900 (NSW), s 42
Succession Act 2006 (NSW), Pt 4.4
Cases Cited: Abraham v Mallon (1975) 1 BPR 9157
Akiba v Queensland (No 2) (2010) 204 FCR 1; [2010] FCA 643
All Options Pty Ltd v Flightdeck Geelong Pty Ltd [2019] FCA 588
Australian Competition and Consumer Commission v Woolworths Ltd [2019] FCA 1039
Batey v Gifford (1997) 42 NSWLR 710
Bell v Scott (1922) 30 CLR 387; [1922] HCA 13
Borda v Burgess [2003] NSWSC 1171
Byers v Dorotea (1986) 69 ALR 715
Carlish v Salt [1906] 1 Ch 335
Carpenter v McGrath (1996) 40 NSWLR 39
Carydis v Merrag Pty Ltd [2007] NSWSC 1220
Chambers v Borness [2014] NSWSC 890
City of Botany Bay Council v Jazabas Pty Ltd [2001] NSWCA 94
Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1988) 21 NSWLR 160
Country Energy v Williams; Williams v Director-General of National Parks and Wildlife (2005) 63…

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 Mehmet v Carter

Details

AGLC: Mehmet v Carter [2020] NSWSC 413
Case: [2020] NSWSC 413
Decision Date: 17 April 2020

CaseChat Overview and Summary

The case of Mehmet v Carter dealt with a dispute between the purchasers and vendors of a property in Sydney. The purchasers, Mehmet, had raised requisitions relating to a number of defects and issues with the property, including errors and misdescriptions in the contract for sale. The vendors, Carter, refused to address the requisitions, leading the purchasers to terminate the contract. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the vendors' refusal to address the requisitions constituted a repudiation of the contract, entitling the purchasers to terminate. A secondary issue was the meaning of "Aboriginal object" under the National Parks and Wildlife Act 1974 (NSW), as this was relevant to one of the requisitions.

The court found that the vendors' refusal to address the requisitions amounted to a repudiation of the contract, as the issues raised were significant and the vendors had failed to respond adequately. The court held that the vendors had obligations to address the requisitions in good faith and that their failure to do so constituted a breach of contract. The court also found that the term "Aboriginal object" under the Act encompassed a wide range of items and places of significance to Aboriginal people, including the property in question. The purchasers were entitled to terminate the contract and seek remedies for the breach.

The court ordered that the contract be terminated and that the purchasers be entitled to a refund of the deposit, along with damages for the breach of contract. The court also ordered that the vendors pay the purchasers' costs of the proceedings. This decision highlights the importance of vendors addressing requisitions in a timely and appropriate manner, and the potential consequences of failing to do so. It also underscores the significance of heritage conservation and the protection of Aboriginal heritage in property transactions.

Orders