Mijalkov v Barbaro - [2003] NSWSC 1024

CITATION: Mijalkov v Barbaro [2003] NSWSC 1024

HEARING DATE(S): 3/11/03

JUDGMENT DATE:
7 November 2003

JUDGMENT OF: Burchett AJ at 1

DECISION: Specific performance order to be made; Plaintiffs directed to bring in short minutes on a date to be fixed.

CATCHWORDS: SPECIFIC PERFORMANCE - sale of land on condition relating to subdivision - inconsistent conditions - obligation of vendors not performed - right of rescission not available.

CASES CITED: Re Strand Music Hall Company (Limited) (1865) 35 Beav. 153; 55 ER 853
Wardy v Hardy (2003) NSW Conv R 58,514

PARTIES :
Dragan Mijalkov and Adriana Maria Mijalkov (Plaintiffs)
Ross Barbaro and Frances Barbaro (Defendants)

FILE NUMBER(S): SC 5449/02

COUNSEL: G.M. McGrath (Plaintiff)
C. Dwyer (Defendant)

SOLICITORS: Isho & Associates (Plaintiff)
Marando Solicitors (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BURCHETT AJ

7 NOVEMBER 2003

5449/02 - MIJALKOV v BARBARO

JUDGMENT

1 BURCHETT AJ: The plaintiffs sue for specific performance of a conditional contract for the sale to them of land identified as a particular lot in an unregistered plan of subdivision, the defendants (the vendors) having purported to rescind the contract for failure of the condition. The sole question is whether the defendants had done what it was incumbent upon them to do before they could be entitled to rescind.

2 On 16 November 2001, the contract was entered into between the parties in accordance with the 2000 edition of the standard form, modified by special conditions. That standard form contains the same clause 28 which was construed by the Court of Appeal in Wardy v Hardy (2003) NSW Conv R 58,514, and is set out in the judgment of Mason P at 58,518-58,519. Clause 28 was left unchanged by the draftsman of the contract, but a Special Condition 22 was added, prefaced by the statement:

[there were others as well]

Special Condition 22 reads:

[sic]

PROVIDED HOWEVER

3 I pause to remark that clause 19, referred to in the closing words of the term, is a standard clause governing the incidents of a valid rescission,…

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

AGLC: Mijalkov v Barbaro [2003] NSWSC 1024
Case: [2003] NSWSC 1024
Decision Date: 7 November 2003

CaseChat Overview and Summary

Mijalkov v Barbaro is a case involving the defendants, Mijalkov and his wife, who sought specific performance of a contract for the sale of land against the plaintiffs, Barbaro and his wife. The contract included conditions related to the subdivision of the land, which were allegedly inconsistent with other obligations of the vendors. The case was heard in the Supreme Court of Queensland.

The primary legal issue the court had to address was whether the vendors were required to perform the obligation of subdivision before the purchasers could enforce specific performance, given the inconsistent conditions in the contract. The court also had to determine if the purchasers could exercise their right of rescission due to the vendors' failure to perform their obligations.

The court found that the conditions in the contract regarding the subdivision of the land were inconsistent with the vendors' other obligations, making it unclear which condition should take precedence. However, the court held that the purchasers were not entitled to exercise their right of rescission due to the vendors' failure to perform their obligations. Instead, the court ordered specific performance, requiring the vendors to complete the sale of the land as per the contract terms. The court ruled that the purchasers were entitled to have the contract enforced, notwithstanding the vendors' failure to perform certain obligations, as the purchasers had already fulfilled their contractual obligations.

Orders