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Notter v Girault

Notter v Girault

Case [2004] NSWSC 863 20 September 2004

Contract Formation

Breach of Contract

Repudiation & Termination

Specific Performance

Contract Law

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CITATION: Notter v Girault [2004] NSWSC 863

HEARING DATE(S): 08/09/04

JUDGMENT DATE:
20 September 2004

JUDGMENT OF: White J

DECISION: 1. Dismiss the Amended Summons; 2. Dissolve the injunction granted on 25 June 2004; 3. Direct that if the defendant wishes an enquiry as to damages pursuant to the plaintiff's undertaking as to damages given on 25 June 2004, the defendant file and serve a notice of motion and affidavit in support thereof within 28 days; 4. Refer the proceedings to a Master to enquire as to damages, if such notice of motion is filed; 5. The plaintiff pay the defendant's costs; 6. Exhibits to be returned after 28 days.

CATCHWORDS: Contract - Sale of land - Forfeited deposit - Whether there was a revival of previous contract - Authority of licensed conveyancer to enter into a new contract for the vendor - Whether there were acts of part performance by purchaser - Claim for repayment of forfeited deposit.

LEGISLATION CITED: Conveyancing Act 1919 (NSW) ss 54A, 55(2A)

CASES CITED: Cameron v McGrath (1996) 40 NSWLR 39
Ashington Piggeries Limited v Christopher Hill Limited [1972] AC 441
Pianta v National Finance and Trustees Ltd (1964) 180 CLR 146
Strangas v Young (1975) 1 BPR 9123
Tweddell v Henderson [1975] 2 All ER 1096
Khouri v Khoury [2004] NSWSC 770
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Francis v Francis [1952] VLR 321

PARTIES :
Ruth Claudia Notter
v
Patricia Suzanne Maryline Girault

FILE NUMBER(S): SC 3635/04

COUNSEL: Plaintiff: W J Carney
Defendant: G M McGrath

SOLICITORS: Plaintiff: Carneys Lawyers
Defendant: Hannaford Cox Connellan & McFarland

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
ONE DAY LIST

WHITE J

Monday, 20 September 2004

3635/04 Ruth Claudia Notter v Patricia Suzanne Maryline Girault

JUDGMENT

1 HIS HONOUR: The plaintiff in these proceedings was the purchaser of a property at 2345 Waterfall Way, Bellingen under a contract of sale entered into on 31 December 2003. The defendant was the vendor. The purchase price was $600,000. A 10% deposit was paid on exchange and was held by the vendor’s agent. The due date for completion of the contract was 30 January 2004.

2 On 24 January 2004 the purchaser’s solicitor, Mr Shalovsky, advised the vendor’s licensed conveyancer, Mr Hunter, that there would be some delay in settlement. This was not acceptable to the vendor. On 2 February 2004 the vendor issued a notice to complete requiring completion of the contract by 3.00 pm on 18 February 2004. No objection was taken to the validity of the notice to complete. The purchaser failed to complete the contract on 18 February. On 18 February 2004 Mr Shalovsky on behalf of his client, requested a further 14 days to sort out the problems his client was experiencing with the financing of the purchase. The vendor did not accept the proposal.

3 On 19 February 2004 the vendor through Mr Hunter, gave notice of termination of the contract and forfeiture of the…

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 Notter v Girault

Details

AGLC: Notter v Girault [2004] NSWSC 863
Case: [2004] NSWSC 863
Decision Date: 20 September 2004

CaseChat Overview and Summary

The case of Notter v Girault involved a dispute between the parties regarding the sale of a property and the forfeiture of a deposit. The matter was heard in the Supreme Court of Queensland. The vendor, Girault, sought to forfeit a deposit paid by the purchaser, Notter, due to the latter's failure to complete the purchase as per the terms of the contract. Notter, on the other hand, sought the repayment of the forfeited deposit, claiming that the contract had been revived, or alternatively, that acts of part performance by the purchaser should be recognised.

The court had to determine whether there had been a revival of the original contract of sale, which would negate the vendor's right to forfeit the deposit. It also had to consider whether the licensed conveyancer representing the vendor had the authority to enter into a new contract for the sale of the property. Furthermore, the court examined if there were acts of part performance by the purchaser that could support a claim for specific performance or equitable relief.

In its judgment, the court found that there was no evidence of a revival of the original contract, and therefore the vendor's right to forfeit the deposit remained intact. The court also held that the licensed conveyancer did not have the authority to enter into a new contract for the sale of the property, as the necessary formalities had not been followed. Additionally, the court ruled that there were insufficient acts of part performance by the purchaser to warrant any form of equitable relief. Consequently, the vendor was entitled to retain the forfeited deposit.

As a result, the court dismissed Notter's claim for the repayment of the forfeited deposit and upheld Girault's right to retain the deposit as per the terms of the contract.

Orders