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Proietti-Formaggio v Sacca

Proietti-Formaggio v Sacca

Case [2022] NSWSC 1019 29 July 2022

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Supreme Court

New South Wales

Case Name:	Proietti-Formaggio v Sacca
Medium Neutral Citation:	[2022] NSWSC 1019
Hearing Date(s):	25 July 2022
Date of Orders:	29 July 2022
Decision Date:	29 July 2022
Jurisdiction:	Equity
Before:	Darke J
Decision:	Plaintiffs held entitled to recover unpaid amount of deposit
Catchwords:	CONTRACTS – deposit – contract for the sale of land – where purchasers did not pay the full deposit due under the contract upon exchange – where vendors extended cooling-off period to accommodate purchasers’ inability to secure finance approval – where purchasers ultimately failed to complete the contract by the time stipulated in a Notice to Complete – where vendors terminated the contract and sought to recover unpaid portion of the deposit – where vendors sold the property at a profit soon after terminating the contract – whether purchasers entitled to relief against forfeiture pursuant to Conveyancing Act 1919 (NSW) s 55(2A) – where purchasers provided no explanation of circumstances in which they failed to complete – whether the vendors’ profitable resale of the property is enough to justify relief against forfeiture – vendors held to be entitled to recover unpaid portion of the deposit – not shown that it would be unjust or inequitable to allow the vendors to forfeit the deposit
Legislation Cited:	Conveyancing Act 1919 (NSW), s 55(2A), s 66U, s 66V
Cases Cited:	Baird v Chambers (2010) 15 BPR 28,337; [2010] NSWSC 272 Barrett v Beckwith (No 2) (1974) 1 BPR 9439 Clurstock Pty Ltd v Timanu Pty Ltd (1988) NSW ConvR 55-419 Culjak v Akrawe [2022] NSWSC 949 Golding v Vella (2001) 10 BPR 18,919; [2001] NSWSC 567 Kylsilver Pty Ltd v One Australia Pty Ltd (2001) 10 BPR 18,545; [2001] NSWSC 226 Nassif v Caminer (2009) 74 NSWLR 276; [2009] NSWCA 45 Nwai Pty Ltd v Johnston (2005) 12 BPR 23,939; [2005] NSWSC 1368 Socratous v Koo (1993) 6 BPR 13,226 Terry v Permanent Trustee Australia Ltd (1995) 6 BPR 14,091
Category:	Principal judgment
Parties:	Marco Proietti-Formaggio (First Plaintiff) Eleanor Colleen Proietti-Formaggio (Second Plaintiff) Francesco Antonio Sacca (First Defendant) Samantha Jane Sacca (Second Defendant)
Representation:	Counsel: Mr M Fernandes (Plaintiffs) Solicitors: Helliars (Plaintiffs) MillerPrince (Defendants)
File Number(s):	2021/129789
Publication Restriction:	None

JUDGMENT

Introduction

These proceedings concern a contract for the sale of a residential property in Cherrybrook Rd, West Pennant Hills. The contract was entered into on 30 November 2020, between the plaintiffs (Mr and Mrs Proietti-Formaggio) as vendors, and the defendants (Mr and Mrs Sacca) as purchasers. The purchase price was stated to be $2,350,000.
The details on the front page of the contract indicate that there was a deposit of $235,000, being 10% of the purchase price. However, only $5,875 (or 0.25% of the purchase price) was paid as a deposit at the time of exchange. Subsequently, further sums were paid as deposits in the amounts of $5,000 (on 25 January 2021), $3,000 (on 30 January 2021) and $2,000 (on 1 February 2021). The total amount paid as deposits was…

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 Proietti-Formaggio v Sacca

Details

AGLC: Proietti-Formaggio v Sacca [2022] NSWSC 1019
Case: [2022] NSWSC 1019
Decision Date: 29 July 2022

CaseChat Overview and Summary

Proietti-Formaggio v Sacca is a case involving a dispute over a deposit paid in relation to a contract for the sale of land. The purchasers, Proietti-Formaggio, had not paid the full deposit due upon the exchange of contracts. The vendors, Sacca, extended the cooling-off period to accommodate the purchasers’ inability to secure finance approval. However, the purchasers ultimately failed to complete the contract by the time stipulated in a Notice to Complete, leading the vendors to terminate the contract and seek to recover the unpaid portion of the deposit. The purchasers claimed relief against forfeiture, arguing that the vendors’ profitable resale of the property was unjust and inequitable.

The primary legal issue before the court was whether the purchasers were entitled to relief against forfeiture under section 55(2A) of the Conveyancing Act 1919 (NSW). This section allows a court to order relief against forfeiture if it is just and equitable to do so, considering all the circumstances of the case. The purchasers argued that the vendors’ resale of the property at a profit should be considered an important factor in determining whether relief should be granted. The court needed to decide if the vendors’ profitable resale was enough to justify relief against forfeiture, especially given the purchasers' failure to provide any explanation for their inability to complete the purchase.

In reaching its decision, the court considered the statutory provisions and the circumstances of the case. It noted that the purchasers had not provided any explanation for their failure to complete the contract. The court also examined the vendors' conduct, including the extension of the cooling-off period and the resale of the property at a profit. Ultimately, the court held that the vendors were entitled to recover the unpaid portion of the deposit. It was not shown that it would be unjust or inequitable to allow the vendors to forfeit the deposit, given the purchasers' failure to provide a satisfactory explanation for their non-completion.

The court's final orders confirmed that the vendors were entitled to recover the unpaid portion of the deposit. The purchasers were not granted relief against forfeiture, and the vendors were allowed to retain the deposit. The court found that the purchasers' failure to provide any explanation for their non-completion, coupled with the vendors' conduct, did not justify relief against forfeiture under section 55(2A) of the Conveyancing Act 1919 (NSW).

Orders