Signorelli v M G South Pty Ltd - [2012] NSWSC 1606

Supreme Court

New South Wales

Medium Neutral Citation: Signorelli v M G South Pty Ltd [2012] NSWSC 1606
Hearing dates: 10 - 12 December 2012
Decision date: 13 December 2012
Jurisdiction: Common Law
Before: Rein J
Decision:
Judgment in favour of the defendants on the plaintiff's claim against them.

Catchwords:
CONVEYANCING - exchange of contracts - deposit - where real estate agent accepted a copy of a deposit bond pending provision of the original the next business day - agent did not breach his duty to the vendor

CONVEYANCING - breach of contract for sale and remedies - vendor's remedies - rescission or termination - entitlement to - where contract term required provision of a deposit bond - where purchaser provided a copy of a deposit bond which could not be called on for cash - where vendor agreed to extend time for provision of original deposit bond to next business day - vendor entitled to terminate immediately on failure to supply original deposit bond by close of the next business day

TORTS - negligence - damage - causation - where copy of a deposit bond accepted by real estate agent on exchange of contracts - where vendor was always entitled to terminate contract for purchaser's failure to produce deposit bond - agent's acceptance of the copy of deposit bond, failure to verify or obtain advice on its validity and failure to verify the purchaser's details in the contract not causative of loss - vendor's solicitor's failure to verify the validity of the deposit bond similarly not causative of loss
TORTS - negligence - damage - causation - where copy of a deposit bond accepted by real estate agent on exchange of contracts - where purchaser would not have produced the original deposit bond and would not have provided the balance of a 10% "deposit" - where authority exists to suggest that vendor may not have been entitled to balance of 10% of the purchase price - vendor's solicitor's failure to require payment of deposit by alternate means as required under contract not causative of loss
Legislation Cited: Civil Liability Act 2002
Legal Profession Act 2004
Property Stock and Agents Act 2002
Cases Cited: Brien v Dwyer (1978) 141 CLR 378
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187
Iannello v Sharpe [2007] NSWCA 61; 69 NSWLR 452
Josland v Mullaley Properties Pty Ltd (1993) 6 BPR 13,285
Luu v Sovereign Developments Pty Ltd [2006] NSWCA 40
Romanos v Pentagold Investments Pty Ltd [2003] HCA 58; (2003) 217 CLR 367
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
Stone v Matich (1981) 2 BPR 9301
Wood Hall Ltd v Pipeline Authority [1979] HCA 21; (1979) 141 CLR 443
Category: Principal judgment
Parties: Paul John Signorelli (Plaintiff)
M G South Pty Ltd (First defendant)
P E Baltins & A L Matiussi & L Polito & R Tosolini t/as Willis & Bowring Solicitors (Second defendant)
Representation: Counsel:
J L Sharpe (Plaintiff)
D McLure…

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: [2012] NSWSC 1606
Decision Date: 13 December 2012

CaseChat Overview and Summary

Signorelli v M G South Pty Ltd was a case before the court where the dispute centred around the exchange of contracts for the sale of property, specifically concerning the deposit provided by the purchaser. The vendor sought to terminate the contract for the purchaser's failure to provide a valid deposit bond. The case required the court to address several legal issues, including whether the vendor's agent breached his duty by accepting a copy of a deposit bond, whether the vendor was entitled to terminate the contract, and whether any negligence on the part of the agent or solicitor caused the vendor's loss.

The court considered whether the real estate agent breached his duty by accepting a copy of the deposit bond and failing to verify its validity or the purchaser's details. The court found that the agent did not breach his duty since the vendor could always terminate the contract for failure to provide a valid deposit bond. Additionally, the court examined whether the vendor's solicitor was negligent in failing to verify the deposit bond or require payment by alternate means. The court concluded that these failures were not causative of the vendor's loss, as the purchaser would not have provided the original deposit bond or the balance of the deposit.

The court determined that the vendor was entitled to terminate the contract immediately upon the purchaser's failure to supply the original deposit bond by the end of the next business day. The court held that the vendor's agent and solicitor were not liable for negligence as their actions or inactions were not causative of the vendor's loss. The court found that the vendor would not have received the balance of the deposit regardless of the solicitor's actions, and the purchaser would not have provided the original deposit bond.

The court ordered that the vendor was entitled to terminate the contract and that the purchaser was liable for the vendor's loss resulting from the termination. The court also found that neither the real estate agent nor the vendor's solicitor was liable for negligence in this matter.

Orders