Parkin v Pagliuca - [2008] NSWSC 168

CITATION: Parkin v Pagliuca [2008] NSWSC 168

HEARING DATE(S): 20, 21 & 22/02/2008

JUDGMENT DATE :
7 March 2008

JURISDICTION: EQUITY

JUDGMENT OF: Bryson AJ

DECISION: (1) Declaration that the document titled “Contract for Sale of Land – 2000” edition dated 29 June 2004 naming the Plaintiff as purchaser and the Defendants as Vendor (the “Contract”) does not constitute a valid and binding contract.
(2) Declaration that the Notice to Complete served by the Defendants on the Plaintiff pursuant to the Contract is void and of no effect.
(3) Order that the deposit paid by the Plaintiff to the Defendant pursuant to the purported Contract be refunded to the Plaintiff by the Defendants together with all interest earnt on the investment of deposit.
(4) Order that the defendants pay the plaintiff’s costs of the proceedings.
On the First Cross-claim
(5) Give judgment for the cross-defendant with costs.
On the Second Cross-claim
(6) Give judgment for the cross-claimants for damages to be assessed, with costs.
(7) Reserve liberty to apply for directions for the conduct of the inquiry as to damages.
On the Third Cross-claim
(8) Give judgment for the cross-claimant for nominal damages $1.
(9) Order that the cross-defendant pay the cross-claimant’s costs of the proceedings on the claim and cross-claims on the indemnity basis: but giving credit for any costs recovered by her under other costs orders.

CATCHWORDS: VENDOR and PURCHASER - exchange of contracts - informal exchange by solicitor acting for V and P - copy signed by V complete, copy signed by P did not contain 9 printed pages including alterations and Cooling-off Statements - HELD - no contract formation, alternatively P entitled to rescind because of absence of Cooling-off Statement - Sindel v Georgiou distinguished as in this case there was no earlier consensus which would ground rectification.

LEGISLATION CITED: Conveyancing Act 1919; ss.23C and 52A
Environmental Planning and Assessment Act 1979

CASES CITED: Ermogenous v Greek Orthodox Community of SA Inc. [2002] HCA 8; (2002) 209 CLR 95
Masters v Cameron (1954) 91 CLR 353
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359
Sindel v Georgiou (1984) 154 CLR 661
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

PARTIES: Donna Maree Parkin - Plaintiff
Antonio Pagliuca, Domenique Pagliuca - Defendants
Peter Williams - Cross-defendant in Second Cross-claim

FILE NUMBER(S): SC 2068/2006

COUNSEL: J T Johnson - Plaintiff
C Harris SC - Defendants
G Curtin - Cross-defendant in Second Cross-claim

SOLICITORS: Macedone Christie Willis - Plaintiff
Willis & Bowring - Defendants
Colin Biggers & Paisley - Cross-defendant in Second Cross-claim

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

Friday 7 March 2008

2068/2006 Donna Maree Parkin vAntonio Pagliuca & Anor

JUDGMENT

1 HIS HONOUR: The defendants Mr and Mrs Pagliuca acquired two adjacent house properties in Searl Road, Cronulla, and carried out a development of a three-storey residential flat building containing 14 dwellings, under a development consent obtained…

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 Parkin v Pagliuca

Details

AGLC: Parkin v Pagliuca [2008] NSWSC 168
Case: [2008] NSWSC 168
Decision Date: 7 March 2008

CaseChat Overview and Summary

In the case of Parkin v Pagliuca, the dispute arose between the vendor, Parkin, and the purchaser, Pagliuca, concerning the exchange of contracts for a property. The matter was heard in the Supreme Court of New South Wales. The primary issue for the court was whether a binding contract had been formed between the parties despite discrepancies in the copies of the signed contracts.

The court had to determine whether the informal exchange of contracts by the solicitors, which resulted in one party receiving a complete copy while the other did not, constituted a valid contract. Furthermore, the court considered whether the absence of a Cooling-off Statement in the purchaser's copy entitled the purchaser to rescind the contract. The court distinguished the case from Sindel v Georgiou, as there was no earlier consensus in this case which would justify rectification of the contract.

The court held that no binding contract had been formed due to the discrepancies in the signed copies. The purchaser, Pagliuca, was entitled to rescind the contract because of the absence of the Cooling-off Statement. The court found that the lack of a consensus between the parties regarding all terms of the contract precluded the formation of a binding agreement. The absence of a Cooling-off Statement also justified the rescission of the contract. This decision underscores the importance of ensuring all parties receive complete and identical copies of contractual documents.

Orders