Nassif v Caminer

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.