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 866Category: Principal judgment Parties: Nicholas Arthur Stokes (Plaintiff)
Molly Harriss Toyne (Defendant)Representation: Counsel:
Solicitors:
J. Ronald (Plaintiff)
J.K. Raftery (Defendant)
Baker Deane and Nutt Lawyers (Plaintiff)
King & Wood Mallesons (Defendant)
File Number(s): 2017/205679 Publication restriction: Nil
Judgment
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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.
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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…
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- AGLC
- Nicholas Arthur Stokes v Molly Harris Toyne [2019] NSWSC 274
- Case
- [2019] NSWSC 274
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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