Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Namrood v Ebedeh-Ahvazi [2017] NSWCA 310 Hearing dates: 28 November 2017 Decision date: 08 December 2017 Before: Leeming JA at [1];
Payne JA at [77];
Sackville AJA at [78]Decision: Appeal dismissed, with costs
Catchwords: CONVEYANCING – contract for sale of land – purported termination by both parties – vendor required to perform works “by completion” – whether performance required by date specified for completion under contract or time of settlement – contract distinguished between “completion” and “date of completion” – whether vendor complied with obligation to perform works – validity of notice to perform and notices to complete – whether vendor’s misleading and deceptive conduct causally connected with purchaser's successful bid at auction – whether deposit should be returned – Conveyancing Act 1919 (NSW), s 55(2A) Legislation Cited: Conveyancing Act 1919 (NSW), s 55(2A)
Protection of the Environment Operations Act 1997 (NSW), ss 96, 97, 98
Uniform Civil Procedure Rules, r 51.36Cases Cited: DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12
Jillinda Pty Ltd v McCourt (1983) 3 BPR 97,174
Lantry v Tomule Pty Ltd [2007] NSWSC 81; 12 BPR 23,727
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537; [1982] HCA 29
Romanos v Pentagold Investment Pty Ltd (2003) 217 CLR 367; [2003] HCA 58
Ross T Smyth & Co Ltd v T D Bailey Son & Co [1940] 3 All ER 60
Sweet & Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699Category: Principal judgment Parties: Sarjon Youssif Namrood (Appellant)
Sam Ebadeh-Ahvazi (Respondent)Representation: Counsel:
Solicitors:
G M McGrath (Appellant)
B Oliak, S Swami (Respondent)
Isho Lawyers (Appellant)
Galluzzo Lawyers (Respondent)
File Number(s): 2017/139473 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity
- Citation:
- [2017] NSWSC 399
- Date of Decision:
- 12 April 2017
- Before:
- Darke J
- File Number(s):
- 2015/311268
Judgment
-
LEEMING JA: Sarjon Youssif Namrood appeals as of right from a judgment holding that his vendor, Sam Ebedeh-Ahvazi, is entitled to retain a deposit of $146,000 paid by him pursuant to a contract for the sale of some 5.75 acres of vacant land in Cecil Park in south western Sydney. The primary judge (Darke J) heard and determined a claim and cross-claim over two days and delivered careful reasons addressing a large number of issues raised by the parties in a judgment delivered a fortnight later: Ebedeh-Ahvazi v Namrood [2017] NSWSC 399. The 12 grounds of appeal which were pressed give rise to six broad areas of dispute:
Questions of construction as to the time by which the vendor was required to undertake certain activities pursuant to orders made by the local council (grounds 1-3);
A challenge to the factual findings as to whether the vendor’s belated undertaking of works and provision of a survey satisfied his contractual obligations (grounds 4 and 6);
Whether the vendor had repudiated the contract (ground…
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- Case
- [2017] NSWCA 310
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine several key legal issues. These included whether the vendor's obligation to perform works "by completion" meant performance by the date specified for completion in the contract or at the time of settlement. The court also had to consider whether the contract itself distinguished between "completion" and the "date of completion," and if so, how that distinction impacted the vendor's compliance. Furthermore, the court examined the validity of the notices to perform and notices to complete issued by the vendor, and whether the vendor's alleged misleading and deceptive conduct was causally connected to the purchaser's successful bid at auction. Finally, the court considered whether the deposit should be returned pursuant to section 55(2A) of the *Conveyancing Act 1919* (NSW).
The Court of Appeal reasoned that the contract clearly distinguished between "completion" and the "date of completion," and that the vendor's obligation to perform works was tied to the former. The court found that the vendor had not complied with this obligation by the date of completion. Consequently, the vendor's subsequent notices to complete were invalid. The court also found no causal connection between the vendor's conduct and the purchaser's bid at auction, and therefore the deposit was not required to be returned. The appeal was dismissed, with costs awarded to the respondent.
Orders
Orders of the court
Appeal dismissed, with costs
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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