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Stokes v Toyne

Stokes v Toyne

Case [2019] NSWSC 274 18 March 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Nicholas Arthur Stokes v Molly Harris Toyne [2019] NSWSC 274
Hearing dates: 15 & 16 October 2018
Decision date: 18 March 2019
Before: Rees J
Decision:
Judgment for the Plaintiff. Orders at [167].

Catchwords: LAND LAW — Conveyancing — Contract for sale — Deposit — Application for relief from forfeiture of deposit pursuant to Conveyancing Act 1919 (NSW) s 55(2A) — Whether unjust or inequitable — Factors relevant to exercise of the Court’s discretion — improvements to land between exchange and termination – lengthy pre-contractual negotiations between parties — Significant funds expended to obtain finance — Vendor’s right to terminate exercised after several extensions — Purchaser conferred benefit and detriment on Vendor by works undertaken on land — Purchaser caused modest increase in value of land — Order for return of deposit.
Legislation Cited: Conveyancing Act 1919 (NSW), s 55(2A)
Law of Property Act 1925 (UK), s 49(2)
Property Law Act 1958 (Vic), s 49(2)
Cases Cited: Butcher v Harkins [2001] NSWSC 15
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60
Chambers v Borness (2014) BPR 33,545; [2014] NSWSC 890
Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWCA 282
Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWSC 528
Harkins v Butcher; Butcher v Lachlan Elder Realty Pty Ltd (2002) 55 NSWLR 558; [2002] NSWCA 237
Hasanovic v Polistena (1982) NSW Conv R ¶55-078
Havyn Pty Ltd v Webster (2005) 12 BPR 22,837; [2005] NSWCA 182
Kinder Investments Pty Ltd v Sydney City Council (2005) 143 LGERA 237; [2005] NSWLEC 737
Lucas & Tait (Investments) Pty Ltd v Victoria Securities Ltd [1973] 2 NSWLR 268
Mulkearns v Chandos Developments Pty Ltd (2003) 11 BPR 21,277; [2003] NSWSC 1132
Mulkearns v Chandos Developments Pty Ltd (No 4) (2005) 12 BPR 22,993; [2005] NSWSC 511
Nassif v Caminer (2009) 74 NSWLR 276; [2009] NSWCA 45
PC Developments Pty Ltd v Revell (1991) 22 NSWLR 615
Rushcutters Bay Developments Pty Ltd v Dragon Asset Investment Pty Ltd (No 2) (2017) 18 BPR 37,025; [2017] NSWSC 866
Category: Principal judgment
Parties: Nicholas Arthur Stokes (Plaintiff)
Molly Harriss Toyne (Defendant)
Representation:
Counsel:
J. Ronald (Plaintiff)
J.K. Raftery (Defendant)
Solicitors:
Baker Deane and Nutt Lawyers (Plaintiff)
King & Wood Mallesons (Defendant)

File Number(s): 2017/205679
Publication restriction: Nil

Judgment

HER HONOUR: This is an application under section 55(2A) of the Conveyancing Act 1919 (NSW) by Nicholas Stokes, a purchaser under two contracts for sale of land, for the return of the deposits from Molly Toyne, the vendor. The deposits total $110,000.
The case is somewhat unusual in that the process of purchasing the properties stretched over more than two years. It began with efforts by Ms Toyne and her husband to develop and subdivide the properties using Mr Stokes’ services as a contractor. Over time, it was proposed that Mr Stokes would develop and subdivide one property and be…

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 Stokes v Toyne

Details

AGLC: Nicholas Arthur Stokes v Molly Harris Toyne [2019] NSWSC 274
Case: [2019] NSWSC 274
Decision Date: 18 March 2019

CaseChat Overview and Summary

Stokes, the purchaser, applied to the court for relief from the forfeiture of a deposit paid under a contract for the sale of land to Toyne, the vendor. The dispute arose when Toyne exercised the right to terminate the contract and retained the deposit after the contract was no longer binding due to the purchaser's failure to complete the purchase. The case was heard in the Supreme Court of New South Wales.

The primary legal issue for the court was whether it was just and equitable to grant the purchaser relief from the forfeiture of the deposit under section 55(2A) of the Conveyancing Act 1919 (NSW). The court needed to assess the relevant factors to exercise its discretion, including the improvements made to the land by the purchaser, the lengthy pre-contractual negotiations, the significant funds expended by the purchaser to obtain finance, and the modest increase in the value of the land caused by the purchaser's works.

The court considered the nature of the improvements and their impact on the value of the land, the extent of the negotiations, and the financial commitment made by the purchaser. The court found that the purchaser had conferred both benefit and detriment on the vendor by the works undertaken on the land, and that the purchaser's actions had caused a modest increase in the value of the land. The court also noted the significant funds expended by the purchaser to obtain finance and the lengthy pre-contractual negotiations between the parties. The court held that it was just and equitable to grant the purchaser relief from the forfeiture of the deposit.

The court ordered that the deposit paid by the purchaser be returned to the purchaser, and that the vendor bear the costs of the application. The court emphasised the importance of the discretion to be exercised judiciously in each case, taking into account all the relevant factors.

Orders