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Segal v Osborne

Segal v Osborne

Case [2016] NSWSC 941 7 July 2016

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Supreme Court

New South Wales

Medium Neutral Citation: Segal v Osborne [2016] NSWSC 941
Hearing dates: 22, 23 March, 12 May 2016
Date of orders: 07 July 2016
Decision date: 07 July 2016
Jurisdiction: Equity
Before: Darke J
Decision:
Amended Statement of Claim is dismissed with costs.

Catchwords:
CONVEYANCING – completion of contract – claim for reduction of purchase price owing to damage to land – whether damage to land through removal of fixtures – whether damage to land because of substantial quantity of rubbish on land – Conveyancing Act 1919 (NSW), s 66M

REAL PROPERTY – fixtures to land – dealings with and affecting fixtures – whether dishwasher fixture or chattel – whether incomplete kitchen cabinet fixture or chattel – whether large free standing wardrobes fixtures or chattels

CONVEYANCING – contract for sale – clause provided for purchase price to increase if completion occurred after nominated completion date, except where “actual completion is delayed because of vendor’s default” – whether completion delayed because of vendor’s default

EQUITY – trusts and trustees – powers, duties, rights and liabilities of trustees – statutory trustees for sale –duty of care in respect of trust property – whether breach of duty by failing to levy occupation fee – whether breach of duty to act impartially by permitting one beneficiary to remain in occupation without fee
WORDS AND PHRASES – “vendor’s default”
Legislation Cited: Conveyancing Act 1919 (NSW), ss 66G, 66M
Cases Cited: Agripower Barrabara Pty Limited v Blomfield [2015] NSWCA 30
Arida v Arida [2015] NSWCA 170
Australian Provincial Assurance Co Limited v Coroneo (1938) 38 SR (NSW) 700
Cumberland Consolidated Holdings Limited v Ireland [1946] KB 264
Foran v Wight (1989) 168 CLR 385
Fouche v Superannuation Fund Board (1952) 88 CLR 609
Harb v Harb [2010] NSWSC 1251
Harvey v Barton (No 2) [2014] NSWSC 1478
Hawkins v Farley [1997] 2 Qd R 361
Luu v Sovereign Developments Pty Limited [2006] NSWCA 40
McCrohon v Harith [2010] NSWCA 67
NH Dunn v LM Ericsson Pty Limited (1979) 2 BPR 9241
National Australia Bank Limited v Blacker [2000] FCA 1458; (2000) 104 FCR 288
Palumberi v Palumberi (1986) 4 BPR 9106
Segal v Barel [2013] NSWCA 92
Segal v Barel (No 2) [2013] NSWCA 148
TEC Desert Pty Limited v Commissioner of State Revenue (WA) [2010] HCA 49; (2010) 241 CLR 576
Zaps Transport (Aust) Pty Limited v PJG Warehousing and Distribution Pty Limited [2016] NSWCA 97
Texts Cited: Megarry and Wade, The Law of Real Property (7th ed 2008)
Category: Principal judgment
Parties: Phillip Segal (Plaintiff)
Michael Osborne (First Defendant)
Margaret Colleen Hole (Second Defendant)
Elie Barel (Third Defendant)
Representation:
Counsel:
A Cornish (Plaintiff)
S Chapple (First and Second Defendants)
C Gleeson (Third Defendant)
Solicitors:
Low Doherty and Stratford (Plaintiff)
Osborne Lawyers (First and Second Defendants)
Leigh Johnson Lawyers (Third Defendant)

File Number(s): 2014/342038
Publication restriction: None

Judgment

Introduction

This case concerns a property in Macleay Street, North Bondi. It is a sequel to the proceedings dealt with by…

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 Segal v Osborne

Details

AGLC: Segal v Osborne [2016] NSWSC 941
Case: [2016] NSWSC 941
Decision Date: 07 July 2016

CaseChat Overview and Summary

Segal and Osborne were the parties to this case before the Supreme Court of New South Wales. Segal, the purchaser, sought to reduce the purchase price of the property on the grounds that the land was damaged. This was due to the removal of fixtures, the presence of a substantial quantity of rubbish on the land, and alleged breaches of duty by the statutory trustees in respect of the property. The legal issues revolved around the interpretation of the Conveyancing Act 1919 (NSW), section 66M, the classification of certain items as fixtures or chattels, the definition of "vendor’s default" in the context of the contract for sale, and the trustees' duties under equity. The court had to determine whether the land was damaged due to the removal of fixtures and rubbish, whether the dishwasher and kitchen cabinets were fixtures or chattels, and whether the large free-standing wardrobes were fixtures or chattels. Additionally, the court needed to interpret the term "vendor’s default" and assess whether the trustees breached their duty of care and duty to act impartially.

The court held that the land was not damaged due to the removal of fixtures or the presence of rubbish. The dishwasher and kitchen cabinets were found to be chattels rather than fixtures, and the large free-standing wardrobes were considered fixtures. The court interpreted "vendor’s default" to mean any failure by the vendor to complete the sale on the nominated date unless it was due to circumstances beyond the vendor's control. The trustees were found to have breached their duty of care by failing to levy an occupation fee and their duty to act impartially by allowing one beneficiary to remain in occupation without a fee. The court found that these breaches did not entitle Segal to a reduction in the purchase price.

The Supreme Court of New South Wales dismissed Segal’s claim for a reduction in the purchase price. The court held that the land was not damaged and that the trustees' breaches did not constitute "vendor’s default" as defined. Segal was ordered to pay Osborne’s costs of the proceeding.

Orders