Reported Decision: 74 NSWLR 276
New South Wales
Court of Appeal
CITATION: Nassif & Ors v Caminer [2009] NSWCA 45 HEARING DATE(S): 25 February 2009
JUDGMENT DATE:
31 March 2009JUDGMENT OF: Basten JA at 1; Macfarlan JA at 2; Sackville AJA at 74 DECISION: (a) Appeal allowed.
(b) Cross-appeal dismissed.
(c) Set aside the orders made by the primary Judge on 13 May 2008 and 15 July 2008.
(d) Declare that the contract of sale dated 17 November 2006 between the Vendors (appellants) and the Purchaser (respondent) was validly terminated by the Vendors.
(e) Declare that the deposit of $280,000 paid by the Purchaser to the Vendors be forfeited to the Vendors, together with any interest thereon.
(f) Order that the Purchaser repay to the Vendors the sum of $280,000 with any interest earned thereon.
(g) Order the Purchaser to pay to the Vendors the sum of $40,000 paid to the Purchaser pursuant to the orders made on 15 July 2008, with interest thereon.
(h) The summons filed by the Purchaser in proceedings SC 2782 of 2007 ("Purchaser's Summons") be dismissed.
(i) The Purchaser pay the costs of the Purchaser's Summons and of proceedings SC 2777 of 2007.
(j) The Purchaser pay the Vendors' costs of the appeal.
(k) Grant the Respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.CATCHWORDS: CONVEYANCING - conditions of sale - claims by purchaser - whether entitlement to claim extended to claim in respect of pre-contractual misleading and deceptive conduct - CONVEYANCING - order for return of deposit under Conveyancing Act s 55(2A) - relevance of vendors' higher resale price - whether misleading and deceptive conduct by vendors - relevance of such conduct LEGISLATION CITED: Conveyancing Act 1919, s 55(2A)
Fair Trading Act 1987
Suitors' Fund Act 1951
Trade Practices Act 1974 (Cth)CATEGORY: Principal judgment CASES CITED: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; (2006) 67 NSWLR 9
Byers v Dorotea Pty Ltd (1986) 69 ALR 715
Chief Ajibola Anthony Aribisala v St James' Homes (Grosvenor) Dock Ltd [2008] EWHC 456
Clark Equipment Australia Ltd v Covcat Pty Ltd (1987) 71 ALR 367
Codelfa Constructions Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337
Government Insurance Office of NSW v Atkinson-Leighton Joint Venture [1981] HCA 9; 146 CLR 206
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546; (1988) 79 ALR 83
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) FCR 1
QH Tours Limited v Ship Design and Management (Aust) Pty Limited (1991) 33 FCR 227
Simring v Marinchek [1999] NSWSC 35PARTIES: Sarkis Nassif, Jean Nassif, Joseph Nassif and Bakhos Nassif (Appellants)
David Martin Caminer (Respondent)FILE NUMBER(S): CA 40241/08 COUNSEL: R G Forster SC/D L Warren (Appellants)
D H Murr SC/T T Baw (Respondent)SOLICITORS: Advance Legal (Appellants)
Osbornes Lawyers (Respondent)LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER…
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- AGLC
- Nassif v Caminer [2009] NSWCA 45
- Case
- [2009] NSWCA 45
- Decision Date
CaseChat Overview and Summary
In *Nassif v Caminer*, the Court of Appeal of New South Wales considered a dispute arising from a contract for the sale of land. The vendors (appellants) sought to appeal orders made by the primary judge which had, in effect, allowed the purchaser (respondent) to recover their deposit and other sums paid under the contract. The core of the dispute concerned the validity of the termination of the contract by the vendors and the purchaser's claims, including those based on alleged pre-contractual misleading and deceptive conduct.
The legal issues before the Court of Appeal included whether the purchaser was entitled to claim a return of the deposit under section 55(2A) of the *Conveyancing Act 1919* (NSW) in circumstances where the vendors had terminated the contract, and whether the purchaser's claims of misleading and deceptive conduct by the vendors were relevant to the determination of the contract's validity and the entitlement to the deposit. The court also had to consider the relevance of the vendors' ability to resell the property at a higher price to these issues.
The Court of Appeal reasoned that the purchaser's entitlement to a return of the deposit under section 55(2A) of the *Conveyancing Act* was contingent on the contract being terminated by the purchaser, not by the vendors. As the primary judge had found that the vendors had validly terminated the contract, the purchaser was not entitled to rely on that section for the return of the deposit. Furthermore, the court determined that the alleged misleading and deceptive conduct, even if established, did not render the contract void or give the purchaser a right to terminate and recover the deposit in the manner sought. The higher resale price was not a factor that entitled the purchaser to recover the deposit.
Consequently, the Court of Appeal allowed the vendors' appeal, dismissed the purchaser's cross-appeal, and set aside the primary judge's orders. The court declared that the contract was validly terminated by the vendors and that the deposit was forfeited to the vendors. Orders were made for the purchaser to repay the deposit and other sums paid to them, and for the purchaser to pay the vendors' costs.
The legal issues before the Court of Appeal included whether the purchaser was entitled to claim a return of the deposit under section 55(2A) of the *Conveyancing Act 1919* (NSW) in circumstances where the vendors had terminated the contract, and whether the purchaser's claims of misleading and deceptive conduct by the vendors were relevant to the determination of the contract's validity and the entitlement to the deposit. The court also had to consider the relevance of the vendors' ability to resell the property at a higher price to these issues.
The Court of Appeal reasoned that the purchaser's entitlement to a return of the deposit under section 55(2A) of the *Conveyancing Act* was contingent on the contract being terminated by the purchaser, not by the vendors. As the primary judge had found that the vendors had validly terminated the contract, the purchaser was not entitled to rely on that section for the return of the deposit. Furthermore, the court determined that the alleged misleading and deceptive conduct, even if established, did not render the contract void or give the purchaser a right to terminate and recover the deposit in the manner sought. The higher resale price was not a factor that entitled the purchaser to recover the deposit.
Consequently, the Court of Appeal allowed the vendors' appeal, dismissed the purchaser's cross-appeal, and set aside the primary judge's orders. The court declared that the contract was validly terminated by the vendors and that the deposit was forfeited to the vendors. Orders were made for the purchaser to repay the deposit and other sums paid to them, and for the purchaser to pay the vendors' costs.
Orders
Orders of the court
(a) Appeal allowed. (b) Cross-appeal dismissed. (c) Set aside the orders made by the primary Judge on 13 May 2008 and 15 July 2008. (d) Declare that the contract of sale dated 17 November 2006 between the Vendors (appellants) and the Purchaser (respondent) was validly terminated by the Vendors. (e) Declare that the deposit of $280,000 paid by the Purchaser to the Vendors be forfeited to the Vendors, together with any interest thereon. (f) Order that the Purchaser repay to the Vendors the sum of $280,000 with any interest earned thereon. (g) Order the Purchaser to pay to the Vendors the sum of $40,000 paid to the Purchaser pursuant to the orders made on 15 July 2008, with interest thereon. (h) The summons filed by the Purchaser in proceedings SC 2782 of 2007 ("Purchaser's Summons") be dismissed. (i) The Purchaser pay the costs of the Purchaser's Summons and of proceedings SC 2777 of 2007. (j) The Purchaser pay the Vendors' costs of the appeal. (k) Grant the Respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.
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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