Stals v Zhu - [2018] NSWDC 343

District Court

New South Wales

Medium Neutral Citation: Stals v Zhu [2018] NSWDC 343
Hearing dates: 25 September 2018
Date of orders: 25 September 2018
Decision date: 25 September 2018
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Defendant called outside Court 13A three times at 10:47am – No appearance.
(2) Judgment for the plaintiff for $367,634.36.
(3) The defendant is to pay the plaintiff’s costs of and incidental of the assessment of damages.
(4) Exhibits retained for 28 days.
(5) The plaintiff is to notify the defendant of these orders within 7 days of the entry of these orders onto JusticeLink.

Catchwords: CONTRACT – plaintiff and defendant enter into contract for sale of real estate – defendant pays first but not second instalment of the deposit – plaintiff terminates contract and seeks compensation for shortfall in sale of property and “styling” expenses – no issue of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 29.7
Cases Cited: Buchanan v Dunstan [2007] NSWSC 248
Jampco Pty Ltd v Cameron (No 2) [1985] 3 NSWLR 391
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
Category: Procedural and other rulings
Parties: Plaintiff: Gillian Stals
Defendant: Olga Zhu
Representation:
Counsel:
Plaintiff: Mr D Hughes
Defendant: No appearance
Solicitors:
Plaintiff: Saville Partners Pty Ltd
Defendant: No appearance

File Number(s): 2017/340596
Publication restriction: None

Judgment

The plaintiff by statement of claim filed on 10 November 2017 brought proceedings in relation to a contract to sell property in Bellevue Hill for the sum of $5.55 million for which the deposit was to be paid in two instalments of $277,500 representing 10% of the purchase price. The first of these was paid but the second was not.
As is set out in more detail in my judgment below, the plaintiff’s entitlement after termination to keep and recover the deposit and to sue the defendant to recover any additional losses is of a standard contractual kind found in contract for sale of land in New South Wales.
The plaintiff has already had default judgement entered for the sum of $297,166.48. The application before me, which is brought by way of notice of motion filed on 8 August 2018, is for the assessment of unliquidated damages. It is supported by expert evidence as to valuation, set out in the affidavit of Constantine Dean Galanos sworn 18 September 2018, as well as by an affidavit sworn by the plaintiff annexing all of the relevant documentation.
The first issue to note is that the defendant is not represented in Court. The defendant was called outside Judge Letherbarrow SC's court but failed to appear. I note that the defendant was called outside this Court three times outside the Court at 10:47am and that there is still no appearance on her behalf.
Conformably with the principles of law set out in r 29.7 Uniform Civil Procedure Rules 2005 (NSW) and the principles explained by Barrett J in Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365,…

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 Stals v Zhu

Details

AGLC: Stals v Zhu [2018] NSWDC 343
Case: [2018] NSWDC 343
Decision Date: 25 September 2018

CaseChat Overview and Summary

The case of Stals v Zhu involved the plaintiff, Mr. Stals, who brought a claim against the defendant, Ms. Zhu, regarding the sale of a property. The contract for the sale was established, but the defendant failed to pay the second instalment of the deposit. Mr. Stals terminated the contract and sought compensation for the shortfall in the sale of the property, as well as for expenses related to the preparation and presentation of the property, known as "styling" expenses. The case was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court centred on the enforceability of the contract and the rights of the plaintiff in the event of the defendant’s failure to meet her obligations under the contract. The court needed to determine the appropriate compensation for the shortfall in the sale price and whether the plaintiff could claim the styling expenses. Additionally, the court had to consider if the plaintiff’s actions in terminating the contract were justified and proportionate to the breach.

The court found that the contract was valid and enforceable, and the plaintiff was justified in terminating the contract due to the defendant’s failure to meet her obligations. The court held that the plaintiff was entitled to compensation for the shortfall in the sale price, which was calculated based on the difference between the agreed sale price and the amount received from the subsequent sale. The court also awarded the styling expenses to the plaintiff, finding that these expenses were directly related to the preparation of the property for sale and were incurred as a result of the defendant's breach. The defendant was ordered to pay the plaintiff’s costs of and incidental to the assessment of damages.

In summary, the court ruled in favour of the plaintiff and awarded him $367,634.36 in compensation. The defendant was also ordered to pay the plaintiff’s costs and the exhibits were retained for 28 days. The plaintiff was required to notify the defendant of the court’s orders within seven days of the entry of these orders onto JusticeLink.

Orders

Orders of the court

(1) Defendant called outside Court 13A three times at 10:47am – No appearance.

(2) Judgment for the plaintiff for $367,634.36.

(3) The defendant is to pay the plaintiff’s costs of and incidental of the assessment of damages.

(4) Exhibits retained for 28 days.

(5) The plaintiff is to notify the defendant of these orders within 7 days of the entry of these orders onto JusticeLink.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Stals v Zhu [2018] NSWDC 343
Hearing dates:	25 September 2018
Date of orders:	25 September 2018
Decision date:	25 September 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendant called outside Court 13A three times at 10:47am – No appearance. (2) Judgment for the plaintiff for $367,634.36. (3) The defendant is to pay the plaintiff’s costs of and incidental of the assessment of damages. (4) Exhibits retained for 28 days. (5) The plaintiff is to notify the defendant of these orders within 7 days of the entry of these orders onto JusticeLink.
Catchwords:	CONTRACT – plaintiff and defendant enter into contract for sale of real estate – defendant pays first but not second instalment of the deposit – plaintiff terminates contract and seeks compensation for shortfall in sale of property and “styling” expenses – no issue of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 29.7
Cases Cited:	Buchanan v Dunstan [2007] NSWSC 248 Jampco Pty Ltd v Cameron (No 2) [1985] 3 NSWLR 391 Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
Category:	Procedural and other rulings
Parties:	Plaintiff: Gillian Stals Defendant: Olga Zhu
Representation:	Counsel: Plaintiff: Mr D Hughes Defendant: No appearance Solicitors: Plaintiff: Saville Partners Pty Ltd Defendant: No appearance
File Number(s):	2017/340596
Publication restriction:	None