Saba v Moit Projects - [2014] NSWSC 1759

Supreme Court

New South Wales

Medium Neutral Citation: Saba v Moit Projects [2014] NSWSC 1759
Hearing dates: 02/12/2104 and 03/12/2014
Decision date: 03 December 2014
Jurisdiction: Equity Division - Commercial List
Before: McDougall J
Decision:
Plaintiff to have judgment against second defendants for $260,000 and interest. Second defendants to pay plaintiff's costs on ordinary basis.

Catchwords: BANKING AND FINANCE - instruments - cheques - whether cheque was filled up with authority -where inchoate instrument handed over to real estate agent - where real estate agent filled up cheque - where cheque then delivered for payment of deposit on purchase of real property-
BANKING AND FINANCE - instruments - cheques - whether cheque was delivered conditionally - where conditions communicated to real estate agent not payee - whether payee was informed of conditions - whether conditions required to be satisfied if payee not aware of conditions - whether communicated conditions were satisfied before cheque was presented
PROCEDURE - costs - departing from the general rule - whether to make order for costs on indemnity basis - where offer of compromise made close to hearing date - where offer only compromised claim as to interest amount - whether reasonable not to accept offer - whether court should otherwise order
Legislation Cited: Cheques Act 1986 (Cth)
Conveyancing Act 1919 (NSW)
Cases Cited: Boulas v Angelopoulos (1991) 5 BPR 11477
Spalla v St George Wholesale Finance Pty Ltd (1999) 95 FCR 359
Calderbank v Calderbank [1975] 3 All ER 333
Category: Principal judgment
Parties: Kerry Ann Saba (Plaintiff)
Moit Projects (St Leonards) Pty Limited (First Defendant)
Jialiang Chen and Li Jiang trading as Metroestate Group (Second Defendant/Cross-Claimant)
Colliers International (NSW) Pty Limited (First Cross-Defendant)
Jonathan Canvan (Second Cross-Defendant)
Representation: Counsel:
J Anderson (Plaintiff)
M J Lewis (Second Defendant/Cross-Claimant)
Solicitors:
F C Bryant Thomas & Co (Plaintiff)
Whitfields Solicitors (Second Defendant/Cross-Claimant)

File Number(s): 2013/175721

Judgment

HIS HONOUR: In March 2013 the plaintiff, Mrs Saba, was the proprietor of land at Wolli Creek. That land was scheduled for sale by auction, with the auction to be conducted on 21 March 2013. The selling agent was Colliers International (Colliers). Messrs Jonathan Canavan and Trent Gallagher of Colliers had conduct of the sale.

The property went to auction. It was knocked down to the first named second defendant, Mr Jialiang (Jason) Chen, for $5.2 million. Mr Chen signed a cheque form on a business account (in point of law, an account conducted by a partnership between him and his wife, the other second defendant). The signed but otherwise blank form of cheque came into the hands of Mr Canavan. Mr Canavan filled it up with the name of Mrs Saba as payee and the amount of $260,000, and gave it to her.

The cheque was not met on presentation. The account had been closed. Mrs Saba sues for the value of the cheque.

There were other defendants, and other issues. However, the only issues remaining are those between Mrs Saba and the second defendants. Those issues are:

(1)…

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 Saba v Moit Projects

Details

AGLC: Saba v Moit Projects [2014] NSWSC 1759
Case: [2014] NSWSC 1759
Decision Date: 03 December 2014

CaseChat Overview and Summary

In the case of Saba v Moit Projects, the central issue revolved around the validity of a cheque used for the deposit on the purchase of real property. The cheque in question had been handed over to a real estate agent by the seller, who was not the payee, and subsequently filled out by the agent. The dispute primarily concerned whether the cheque was filled up with the seller's authority and whether it was delivered conditionally. Additionally, the case examined whether the conditions communicated to the real estate agent were satisfied before the cheque was presented.

The court needed to determine whether the cheque was indeed filled out with the seller's authority, considering that the inchoate instrument was handed over to the real estate agent. It also had to assess whether the cheque was delivered conditionally, given that the conditions were communicated to the agent rather than the payee, and whether the payee was informed of these conditions. Furthermore, the court explored whether the conditions required to be satisfied if the payee was not aware of them, and if the communicated conditions were indeed met before the cheque was presented.

The court concluded that the cheque was filled out with the seller's authority and that it was delivered conditionally. The conditions communicated to the real estate agent were found to be satisfied before the cheque was presented, as the agent acted in good faith and without any knowledge of the conditions. The court also determined that it was reasonable for the buyer not to accept the offer of compromise made close to the hearing date, as the offer only compromised the claim as to the interest amount. Ultimately, the court decided not to make an order for costs on an indemnity basis, considering the circumstances of the case.

Orders