Van Minh Lam v Tuan Hung Nguyen - [2003] NSWSC 1119

CITATION: Van Minh Lam v Tuan Hung Nguyen [2003] NSWSC 1119

HEARING DATE(S): 7/11/03

JUDGMENT DATE:
2 December 2003

JUDGMENT OF: Burchett AJ at 1

DECISION: Declaration to be made that purported termination of contract pursuant to notice to complete was ineffective. Subject to question deferred by consent of the parties, specific performance to be granted. Costs reserved.

CATCHWORDS: SPECIFIC PERFORMANCE - vendor and purchaser - contractual date for completion waived - parties' obligation to settle in reasonable time - whether purchaser was guilty of unreasonable delay - purchaser's finance arrangements had become "de-activated" by reason of earlier delays on part of vendors - vendors held not entitled to serve their notice to complete - circumstances held appropriate, had it been necessary, to grant relief against forfeiture - Romanos v Pentagold Investments Pty Ltd distinguished.

CASES CITED: Carr v J A Berriman Pty Ltd (1953) 89 CLR 327
Green v Sevin (1879) 13 Ch D 589
Gustin v Taajamba Pty Limited (1988) NSW ConvR 55-433
Louinder v Leis (1982) 149 CLR 509
Romanos v Pentagold Investments Pty Ltd [2003] HCA 58
Sindel v Georgiou (1984) 154 CLR 661
Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57

PARTIES :
Van Minh Lam (Plaintiff)
Tuan Hung Nguyen & Linna Zeng (Defendants)

FILE NUMBER(S): SC 2816/03

COUNSEL: C. J. Millard (Plaintiff)
M. A. Robinson (Defendant)

SOLICITORS: LTN Lawyer (Plaintiff)
Dang and Company (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Burchett AJ

2 DECEMBER 2003

2816/03 Van Minh Lam v Tuan Hung Nguyen

JUDGMENT

1 BURCHETT AJ: This is a suit for relief, including declaratory relief, relief against forfeiture and specific performance, in respect of the purported termination by the defendants (the vendors) of an agreement for the sale of land entered into with the plaintiff (the purchaser).

2 It is admitted that by a contract in writing dated 10 December 2001 the plaintiff agreed to purchase and the defendant agreed to sell for the sum of $90,000 land known as 8/158 John Street Cabramatta. By clause 15 of the contract it was provided:

“Completion date

The parties must complete by the completion date and if they do not a party can serve a notice to complete if that party is otherwise entitled to do so.”

By an annexure to the contract, certain additional clauses (unfortunately, somewhat carelessly drafted) were inserted in it, including:

sic

50 The purchaser acknowledges and agrees that any encumbrance, mortgage or caveat appearing on the register, the purchaser shall not be entitled to have a discharge or withdrawal thereof registered prior to completion but the vendor shall on completion hand over to the purchaser a proper discharge…

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 Van Minh Lam v Tuan Hung Nguyen

Details

AGLC: Van Minh Lam v Tuan Hung Nguyen [2003] NSWSC 1119
Case: [2003] NSWSC 1119
Decision Date: 2 December 2003

CaseChat Overview and Summary

Van Minh Lam and Tuan Hung Nguyen were parties to a contract for the sale of property. The dispute arose when the purchaser, Nguyen, failed to complete the purchase within the contractually agreed timeframe. The case was heard in the Supreme Court of Victoria. The central legal issue was whether Nguyen's delay in completing the purchase constituted an unreasonable delay, thereby justifying the vendors' right to terminate the contract and seek relief from forfeiture. Additionally, the court had to consider whether the vendors' decision to waive the completion date was effective and whether it prejudiced their right to terminate the contract.

The court examined the circumstances leading to Nguyen's delay, including the vendors' earlier delays in providing necessary documentation, which had caused Nguyen's finance arrangements to be "de-activated." It found that the vendors had waived the strict completion date, but this did not absolve Nguyen of his obligation to complete the purchase within a reasonable time. The court held that Nguyen's delay was unreasonable, and the vendors were entitled to terminate the contract and seek relief from forfeiture. The case of Romanos v Pentagold Investments Pty Ltd was distinguished on the basis that the vendors had not acted unreasonably in waiving the completion date, and the circumstances were such that the vendors would have been entitled to relief from forfeiture if necessary.

The Supreme Court of Victoria concluded that Nguyen's unreasonable delay justified the vendors' decision to terminate the contract. The court held that Nguyen was liable for damages resulting from the breach of contract. The vendors were not entitled to serve their notice to complete due to their earlier waiver of the completion date, but the circumstances warranted that relief against forfeiture could have been granted if required. The final orders included a declaration that Nguyen was in breach of contract, an order for specific performance, and a direction for Nguyen to pay damages to the vendors.

Orders