Tran v Bakour - [2025] NSWSC 101

Supreme Court

New South Wales

Medium Neutral Citation: Tran v Bakour [2025] NSWSC 101
Hearing dates: 12 and 13 February 2025
Date of orders: 27 February 2025
Decision date: 27 February 2025
Jurisdiction: Equity - Real Property List
Before: Pike J
Decision:
(1)   Declare that the contract for sale and purchase of land between the plaintiff as purchaser and the defendant as vendor dated 6 April 2023 in respect of the property known as XXX Wangee Road, Greenacre, New South Wales, 2190 being all of the land and improvements in folio identifier XX/XXXXX should be specifically performed and carried into execution.
(2)   Order that the defendant execute all such instruments and do all such things as are necessary in order to specifically perform the contract and carry the contract into execution within 28 days.
(3)   Grant liberty to either party to relist the proceedings on 3 days’ notice, setting out the relief sought.
(4)   Direct the parties to confer as to the appropriate costs order to be made in the proceedings and to provide by email to my Associate by no later than 4pm on 3 March 2025 any agreed orders as to costs.
(5)   In the event that the parties are unable to agree as to the appropriate costs order:
(a)   direct the parties to provide by email to my Associate by no later than 4pm on 3 March 2025 any material and submissions relied on in relation to costs, such submissions not to exceed 5 pages; and
(b)   direct the parties to provide by email to my Associate by no later than 4pm on 10 March 2025 any material and submissions in reply on costs, such submissions not to exceed 3 pages, whereupon the Court will determine the issue of costs on the papers.

Catchwords:
CONTRACTS – contract for sale of land – specific performance – no question of principle
EQUITY – Equitable remedies – specific performance – whether purchaser ready, willing and able to complete – defence of hardship – no question of principle

Legislation Cited:
Contracts Review Act 1980 (NSW)

Cases Cited:
Carydis v Merrag Pty Ltd [2007] NSWSC 1220
David Jones Ltd v Perpetual Ltd [2006] QSC 337
Dougan v Ley (1946) 71 CLR 142; [1946] HCA 3
ET-China.com International Holdings Limited & Anor v Cheung & Ors (2021) 338 ALR 128; [2021] NSWCA 24
Golden Oceans (NSW) Pty Ltd v Evewall Pty Ltd [2009] NSWSC 674
Hewett v Court (1983) 149 CLR 639; [1983] HCA 7
IGA Distribution Pty Ltd v King & Taylor Pty Ltd [2002] VSC 440
Patel v Ali [1984] 1 Ch 283

Texts Cited:
JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, 2015, LexisNexis Butterworths)

Category: Principal judgment
Parties: Huu Phuc Tran (Plaintiff)
Nada Bakour (Defendant)
Representation: Counsel:
Mr P Newton SC and Mr M Hazan (Plaintiff)
Mr D Allen (Defendant)
Solicitors:
McCabes Lawyers (Plaintiff)
Edmond Khoury Solicitors (Defendant)

File Number(s): 2023/00268501
Publication restriction: Nil

JUDGMENT

On…

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 Tran v Bakour

Details

AGLC: Tran v Bakour [2025] NSWSC 101
Case: [2025] NSWSC 101
Decision Date: 27 February 2025

CaseChat Overview and Summary

Tran and Bakour were the parties to a contract for the sale of a property. The dispute centred on whether the purchaser, Tran, was ready, willing and able to complete the purchase, and whether the vendor, Bakour, was entitled to withhold completion on the grounds of hardship. The case was heard by the Supreme Court of Victoria. The central legal issues were whether Tran had demonstrated readiness, willingness, and ability to complete the transaction, and if so, whether the court should grant specific performance as a remedy. Additionally, the court had to consider whether the doctrine of hardship could be invoked as a defence by Bakour.

The court examined the evidence to determine if Tran had indeed shown readiness, willingness and ability to complete the contract. It was noted that Tran had satisfied all conditions precedent and had taken all necessary steps towards completion. The court found that Tran had met the criteria required to be considered ready, willing and able. Regarding the hardship defence, the court held that it did not provide a valid reason to deny specific performance, as the doctrine of hardship was not applicable in this context. The court reasoned that the hardship must be of a significant nature and must not have been self-imposed or reasonably foreseeable. Since no such hardship was proven, the defence was not successful.

The Supreme Court concluded that Tran was ready, willing and able to complete the purchase and that specific performance should be granted. The court dismissed Bakour's defence of hardship as it did not meet the necessary legal criteria. The final orders included a mandate for Bakour to complete the sale of the property to Tran within the stipulated timeframe.

Orders