Parkes v Mamo - [2016] NSWSC 1129

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 perform
Legislation 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 295
Texts 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:
Ms B K Nolan (Plaintiffs)
Mr D A Smallbone (Defendant)
Solicitors:
Muscat & Co (Plaintiffs)
Keen Lawyers (Defendant)

File Number(s): 2016/129001
Publication restriction: None

Judgment

Introduction

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.
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

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.
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…

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 Parkes v Mamo

Details

AGLC: Parkes v Mamo [2016] NSWSC 1129
Case: [2016] NSWSC 1129
Decision Date: 16 August 2016

CaseChat Overview and Summary

The case of Parkes v Mamo involved the parties, Parkes as the vendor and Mamo as the purchaser, in a dispute concerning the conditions of sale in a contract of conveyance. Specifically, the central issue was whether the purchasers remained obligated to pay the deposit after the guarantee provided for the deposit expired before the completion of the contract. The court had to determine if the obligation to pay the deposit was suspended until the guarantee's expiry and whether the vendor could terminate the contract due to the purchasers' failure to pay the deposit.

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