Supreme Court
New South Wales
Medium Neutral Citation: Parkes v Mamo [2016] NSWSC 1129 Hearing dates: 4 August 2016 Date of orders: 16 August 2016 Decision date: 16 August 2016 Jurisdiction: Equity Before: Darke J Decision: Orders made for specific performance of contract for sale of land. Vendor’s Cross-Summons dismissed.
Catchwords: CONVEYANCING – the contract and conditions of sale – deposit – vendor accepted guarantee for deposit – guarantee expired prior to completion of contract – whether obligation to pay deposit suspended until expiry of guarantee – whether purchasers remained subject to obligation to pay deposit – whether vendor entitled to terminate contract for failure to pay deposit
EQUITY – equitable remedies – specific performance – whether purchasers’ conduct amounted to repudiation or abandonment of contract – whether purchasers are ready, willing and able to performLegislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 31.13(1) Cases Cited: Ari v Decevic [2013] NSWSC 1967
Brien v Dwyer (1978) 141 CLR 378
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
JR Stevens Holdings Pty Ltd v Von Begensey (1992) 5 BPR 97,337
Ma v Adams [2015] NSWSC 1452
Mehmet v Benson (1965) 113 CLR 295Texts Cited: P Butt, The Standard Contract for Sale of Land in New South Wales (2nd ed 1998, LBC Information Services) Category: Principal judgment Parties: Glenn William Parkes (First Plaintiff)
Leigh Ann Parkes (Second Plaintiff)
Ian David Mamo (Defendant)Representation: Counsel:
Solicitors:
Ms B K Nolan (Plaintiffs)
Mr D A Smallbone (Defendant)
Muscat & Co (Plaintiffs)
Keen Lawyers (Defendant)
File Number(s): 2016/129001 Publication restriction: None
Judgment
Introduction
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The plaintiffs, Glenn Parkes and Leigh Parkes, are the puchasers under a contract for the sale of land entered into on 30 June 2015. The defendant, Ian Mamo, is the vendor under the contract.
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By their Summons, the plaintiffs seek a decree of specific performance in respect of the contract. This is resisted by the defendant, who claims that he validly terminated the contract on 11 January 2016. The purported termination was based on the ground that the plaintiffs were in default of their obligations concerning the payment of the deposit. The defendant, by way of a Cross-Summons, seeks an order that the plaintiffs pay the amount of the deposit.
Summary of salient facts
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The property the subject of the contract is described as lot 1 in a proposed plan of sub-division of the land contained in Folio Identifier 155/752021. The proposed sub-division would create two lots: lot 1 with an area of about 2.023ha, and lot 2 with an area of about 3.345ha. A house and other improvements are located on proposed lot 1.
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The contract consists of the 2005 standard Law Society and Real Estate Institute form, together with special conditions and various attachments. The contract was not stamped. However, it was allowed into evidence on the basis that the plaintiffs through their counsel gave the “usual undertaking by person liable” to transmit the contract to the Chief Commissioner of State Revenue…
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- AGLC
- Parkes v Mamo [2016] NSWSC 1129
- Case
- [2016] NSWSC 1129
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed whether the purchasers' conduct constituted a repudiation or abandonment of the contract, and if they were ready, willing, and able to perform their contractual obligations. Additionally, the court needed to consider the equitable remedy of specific performance and whether it could be granted given the circumstances surrounding the guarantee and the deposit.
The court found that the purchasers’ obligation to pay the deposit was indeed suspended until the guarantee expired. However, as the guarantee expired prior to the completion date, the purchasers were no longer subject to the obligation to pay the deposit. Consequently, the vendor was not entitled to terminate the contract for the purchasers' failure to pay the deposit. Furthermore, the court determined that the purchasers had not repudiated or abandoned the contract, and they were ready, willing, and able to perform their obligations. Given these findings, the court granted specific performance, ordering the contract to be completed.
Orders
Orders of the court
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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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