Rasyid v Conrad - [2010] NSWSC 134

CITATION: Rasyid v Conrad [2010] NSWSC 134

HEARING DATE(S): 23 February 2010

JUDGMENT DATE :
23 February 2010

JURISDICTION: Equity Division

JUDGMENT OF: Rein J

DECISION: 1. Declaration that the agreement between the First and Second Plaintiffs, as purchasers, and the First and Second Defendants, as vendors, dated 3 June 2009 ("the Agreement") in respect of the property known as 42 Beaumont Street, Rose Bay, being all of the land and improvements in Folio identifier A/312956 ("the Property") is valid and enforceable and should be specifically performed and carried into execution.
2. Order that the agreement be specifically performed and carried into execution.
3. The matter is stood over to 2 March 2010 before the Duty Judge in Equity for the purpose of making orders for the implementation of the order for specific performance.
4. The Defendants are to file and serve, on or before 26 February 2010, any affidavit evidence which they seek to rely upon in relation to such implementation orders, including:
(a) evidence as to their assets, including any valuations thereof, and liabilities; and
(b) evidence as to any steps taken or being taken to realise their assets and to discharge their liabilities.
5. Further consideration is reserved.
6. The parties have liberty to apply, including for directions for the implementation of these orders, and, if appropriate, for rescission of the decree of specific performance.
7. The Defendants are to pay the Plaintiffs' costs on an indemnity basis.
8. Service of these orders upon the Defendants is to be effected by:
(a) sending a copy of these orders by fax to the office of Richard Bartelesi & Associates, fax number (02) 9363 9869, by 4pm this afternoon;
(b) delivering a copy of these orders to unit 26 (also known as unit 6A) 45 Ocean Avenue, Double Bay, by 12pm (noon) on 24 February 2010.

CATCHWORDS: CONTRACTS - particular parties - vendor and purchaser - sale of land - where vendor failed to complete contract - specific performance

CATEGORY: Principal judgment

CASES CITED: Adderley v Dixon (1824) 1 Sim & St 607
Boyarsky v Taylor [2008] NSWSC 1415
Dougan v Ley (1946) 71 CLR 142
Iambic Pty Ltd v Northwind Holdings Pty Ltd [2001] WASC 44
McIntosh v Dalwood (No 4) (1930) 30 SR (NSW) 415
Pasedina (Holdings) Pty Ltd v Khouri (1977) 1 BPR 9460

TEXTS CITED: I C F Spry, The Principles of Equitable Remedies (7th ed., 2007), Lawbook Co., Sydney

PARTIES: Abubakar Rasyid (First Plaintiff)
Lailawaty Rasyid (Second Plaintiff)
Luke Conrad (First Defendant)
Natasha Grace (Second Defendant)

FILE NUMBER(S): SC 2009/326314

COUNSEL: E Finnane (Plaintiffs)
no appearance (Defendants)

SOLICITORS: Robert Wehbe & Partners (Plaintiffs)
no appearance (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

23 February 2010

2009/326314 Abubakar Rasyid & anor v Luke Conrad & anor

JUDGMENT (EX TEMPORE)

1 REIN J: In this matter, the plaintiffs seek specific performance of a contract for the sale of land, which contract was entered into between the plaintiffs as purchasers and…

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 Rasyid v Conrad

Details

AGLC: Rasyid v Conrad [2010] NSWSC 134
Case: [2010] NSWSC 134
Decision Date: 23 February 2010

CaseChat Overview and Summary

The case of Rasyid v Conrad involved the plaintiff, Rasyid, who had entered into a contract to purchase a property from the defendant, Conrad. The dispute arose when Conrad failed to complete the sale as agreed. Rasyid sought specific performance of the contract, arguing that the property was unique and that damages would not be an adequate remedy.

The primary legal issue before the court was whether Rasyid was entitled to specific performance of the contract. The court was required to consider the nature of the property, the adequacy of damages, and the circumstances under which specific performance may be granted. The court also needed to determine whether there were any defenses available to Conrad that could prevent the granting of specific performance.

The court found that the property in question was unique and that damages would not adequately compensate Rasyid. It considered that specific performance was an appropriate remedy in this case because the property was rare and the loss to Rasyid would be significant if the contract was not enforced. The court also rejected Conrad's defenses, finding that there were no grounds to prevent the granting of specific performance. The court ordered that the contract be specifically performed, requiring Conrad to complete the sale of the property to Rasyid.

Orders