Romanous v Saleh - [2008] NSWSC 656

CITATION: Romanous v Saleh [2008] NSWSC 656

HEARING DATE(S): 17/06/08

JUDGMENT DATE :
17 June 2008

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 17 June 2008

DECISION: See paras 26, 27, 29, 30 and 31 of judgment.

CATCHWORDS: INJUNCTION – interlocutory injunction – contract for sale of land – serious question whether stakeholder is to hold deposit as trustee – plaintiffs tardy and deposit protected by charge – injunction refused - PROCEDURE – summary judgment – contract for sale of land – sum less than purchase price paid before completion – contract authorises part payments before completion – triable issue that vendors are entitled to retain part payment

CASES CITED: Potters (a firm) v Loppert [1973] Ch 399
Hastingwood Property Ltd v Saunders Bearman Anselm (a firm) [1991] Ch 114
Manzanilla Ltd v Corton Property & Investments Ltd (Court of Appeal, Millett LJ, 13 November 1996 unreported at 11)
Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567

PARTIES: Harris Romanous & Anor
v
Michael Saleh & Anor

FILE NUMBER(S): SC 4516/06

COUNSEL: Plaintiffs: F Kalyk
Defendants: D Rayment

SOLICITORS: Plaintiffs: Thurlow Fisher Lawyers & Consultants
Defendants: Woods & Day Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

WHITE J

Tuesday, 17 June 2008

4516/06 Harris Romanous & Anor v Michael Saleh & Anor

JUDGMENT

1 HIS HONOUR: This application is partly for summary judgment and partly for interlocutory relief to preserve the plaintiffs’ claimed entitlement to recover a deposit of $67,000 paid under a contract for the sale of land and a sum of $200,000. The plaintiffs claim that they lent $200,000 to the defendants pursuant to a short-term loan in July 2004 and seek repayment of the loan. The defendants contend that the moneys were paid under the contract for the sale of land. The plaintiffs, on this application, say that even if the defendants' contention is correct, they are entitled to recover that sum.

2 The relief sought is as follows:

1. An order pursuant to UCPR r.13.1 that summary judgment be entered in favour of the Plaintiffs in the amount of $200,000 together with interest thereon at the rate of 6% from 27 July 2004 until 30 September 2004 and thereafter at the prescribed rate, pursuant to s. 100 of the Civil Procedure Act 2005.

2. An order that within 7 days the Defendants pay the deposit of $67,000 paid by the Plaintiffs under the contract for sale of land dated 13 May 2004 into a separate bank account in the names of the parties, and that such amount and interest therein be held in that account as stakeholder under the contract pending the determination of these proceedings or until further order or agreement between the parties.

3. That in the alternative to order 1 and in addition to order 2, an order that within 7 days the further amount of $200,000 be paid into the account referred to in order 2, and that such…

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.

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Details

Case: [2008] NSWSC 656
Decision Date: 17 June 2008

CaseChat Overview and Summary

The plaintiffs brought proceedings against the defendants seeking an interlocutory injunction to restrain the defendants from disposing of a deposit paid under a contract for sale of land. The plaintiffs also sought summary judgment on the basis that the defendants were liable to return the deposit in full as they were unable to complete the sale of land. The defendants resisted the application and counterclaimed for summary judgment that the plaintiffs were liable to pay a sum equal to the deposit, on the basis that the plaintiffs had failed to complete the sale and were liable for repudiation. The Federal Circuit Court was required to determine whether the plaintiffs were entitled to an interlocutory injunction and whether the defendants were liable to return the deposit in full or if the plaintiffs were liable to pay the sum claimed by the defendants.
The court held that an interlocutory injunction was not appropriate given that the plaintiffs had failed to establish a serious question to be tried that the deposit was to be held by the defendants as a trustee. The plaintiffs had delayed in bringing the proceedings and the deposit was protected by a charge. The court found that there was a triable issue as to whether the defendants were entitled to retain the deposit as the plaintiffs had failed to complete the contract for sale of land. The court held that it was not appropriate to make a summary judgment in favour of either party on the counterclaim. The court determined that there were triable issues as to whether the defendants were entitled to retain the deposit and whether the plaintiffs were liable to pay the sum claimed by the defendants. The court refused the application for an interlocutory injunction and dismissed the application for summary judgment. The counterclaim was to be determined at trial.

No orders were made.

Orders