Samuel v Daher; Daher v Samuel - [2022] NSWSC 421

Supreme Court

New South Wales

Medium Neutral Citation: Samuel v Daher; Daher v Samuel [2022] NSWSC 421
Hearing dates: 4 April 2022
Date of orders: 4 April 2022
Decision date: 04 April 2022
Jurisdiction: Equity - Real Property List
Before: Black J
Decision:
Declarations made; order for return of deposit made by consent; defendant ordered to pay plaintiffs’ costs on indemnity basis from specific date.

Catchwords:
LAND LAW — Conveyancing — Contract for sale — Certificates and inspections — LAND LAW — Conveyancing — Contract for sale — Deposit — LAND LAW — Conveyancing — Contract for sale — Rescission — COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — where contract for sale did not annex a swimming pool compliance certificate — whether s 52A(4) of the Conveyancing Act 1919 (NSW) avoids a special condition purporting to vary the requirement to annex a swimming pool certificate — whether the purchaser validly rescinded the contract — whether deposit should be returned to the purchaser — whether indemnity costs should be ordered where a Calderbank offer was made

Legislation Cited:
- Conveyancing Act 1919 (NSW), s 52A(2)(a), s 52A(4)
- Conveyancing (Sale of Land) Regulations 2017 (NSW), cl 4(1), sch 1 cl 15
- Swimming Pools Act 1992 (NSW), s 22D, pt 3A

Cases Cited:
- Calderbank v Calderbank [1975] 3 ER 333
- Mucha v Berry [1991] 24 NSWLR 596
- Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 816
- Nguyen v Taylor [1992] 27 NSWLR 48
- ReAlsafe Security Products Pty Ltd atf the AlsafeTrust (in liq) [2016] NSWSC 575

Category: Principal judgment
Parties:
Proceedings 2021/190190
Sameh Ramsis Nassif Samuel (First Plaintiff)
Monica Samuel (Second Plaintiff)
Hussein Mustapha Daher (First Defendant)
Bexley NSW Pty Ltd t/a Raine & Horne Bexley (Second Defendant)
Proceedings 2021/277376
Hussein Mustapha Daher (Plaintiff)
Sameh Ramsis Nassif Samuel (First Defendant)
Monica Samuel (Second Defendant)
Representation:
Counsel:
Proceedings 2021/190190
H El-Hage (Plaintiffs)
A Bailey (Defendant)
Proceedings 2021/277376
A Bailey (Plaintiff)
H El-Hage (Defendant)
Solicitors:
Proceedings 2021/190190
Shad Partners (Plaintiff)
Zahr Partners (Defendant)
Proceedings 2021/277376
Zahr Partners (Plaintiff)
Shad Partners (Defendant)

File Number(s): 2021/190190
2021/277376

Judgment

Nature of the first proceedings and affidavit evidence

Two proceedings were heard together in this matter. In proceedings 2021/00190190, by Summons filed on 2 July 2021, Mr and Ms Samuel sought a declaration that they validly rescinded a contract for sale dated 17 February 2021 (“Contract”) in respect of a property situated at Kingsgrove, in New South Wales, and a declaration that Special Condition 58 of the Contract was void and of no effect. They also sought an order that the deposit which they have paid to the Second Defendant, Bexley NSW Pty Ltd trading as Raine and Horne Bexley be repaid to them. That order is now not contested, and can be made by consent.
In those proceedings, Mr and Ms Samuel read an affidavit dated 2 July 2021 of Ms Samuel, which…

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 Samuel v Daher; Daher v Samuel

Details

AGLC: Samuel v Daher; Daher v Samuel [2022] NSWSC 421
Case: [2022] NSWSC 421
Decision Date: 04 April 2022

CaseChat Overview and Summary

The case between Samuel and Daher revolves around a dispute concerning a contract for the sale of a property. The central issue was whether the purchaser, Samuel, was entitled to rescind the contract for the sale of the property, and if so, whether he was entitled to the return of his deposit. The dispute also involved whether indemnity costs should be awarded given the existence of a Calderbank offer made by the vendor, Daher. The matter was heard and determined in the Supreme Court of New South Wales.

The legal issues that the Court needed to address included the interpretation and application of section 52A(4) of the Conveyancing Act 1919 (NSW) in relation to the annexing of a swimming pool compliance certificate, the validity of the rescission of the contract by the purchaser, the circumstances under which a deposit should be returned, and the appropriate approach to awarding costs in light of a Calderbank offer. The Court considered whether the absence of the swimming pool compliance certificate was a material defect that entitled the purchaser to rescind the contract and, if so, the implications for the deposit and costs.

The Court found that the absence of the swimming pool compliance certificate was a material defect that entitled Samuel to rescind the contract under the provisions of the Conveyancing Act. The Court held that section 52A(4) did not avoid the special condition requiring the certificate, thus affirming the purchaser's right to rescind. The rescission was considered valid, and the Court ordered the return of the deposit to Samuel. Regarding costs, the Court noted the Calderbank offer made by Daher but ultimately decided that indemnity costs should not be awarded given the circumstances of the case.

The final orders of the Court were that the contract for the sale of the property be rescinded, the deposit returned to Samuel, and that indemnity costs should not be awarded despite the Calderbank offer. The Court's decision underscored the importance of strict compliance with contractual obligations and the consequences for non-compliance, as well as the nuanced approach to costs in light of settlement offers.

Orders