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Vella v Ayshan

Vella v Ayshan

Case [2008] NSWSC 84 15 February 2008

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CITATION: Vella v Ayshan [2008] NSWSC 84

HEARING DATE(S): 07-08/02/08

JUDGMENT DATE :
15 February 2008

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Plaintiffs' counsel to bring in short minutes of order in accordance with reasons.

CATCHWORDS: CONVEYANCING – the contract and conditions for sale – description of property and subject matter of sale – failure to provide the property described in the contract for sale. - CONTRACTS – general contractual principles – consideration – what amounts to consideration – forbearance to exercise a right to rescind.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW)
Civil Procedure Act 2005 (NSW)

CATEGORY: Principal judgment

CASES CITED: Miller v Cannon Hill Estates Ltd [1931] 2 KB 113
Hancock v BW Brazier (Anerley) Ltd [1966] 1 WLR 1317;[1966] 2 All ER 901
Sterling Estates Development Corp Pty Ltd v Malouf (2003) 58 NSWLR 685
Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723
Sinclair-Lockhart’s Trustees v Central Land Board (1950) 1 P & CR 195
Steele v Midland Railway Co (1866) LR 1 ChApp 275
Cole v The West London and Crystal Palace Railway Co (1859) 27 Beav 242; (1859) 54 ER 96
Perry v Sharon Development Co Ltd [1937] 4 All ER 390
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632
Beard v Drummoyne Municipal Council (1969) 71 SR (NSW) 250
Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1
Batey v Gifford (1997) 42 NSWLR 710
Dainford Ltd v Lam (1985) 3 NSWLR 255
Tarval Pty Ltd v Stevens & Ors (1990) NSW ConvR 55-552
Thomson v Miles (1794) 1 Esp 184
Byers v Dorotea Pty Ltd (1986) 69 ALR 715
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 241 ALR 88
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

TEXTS CITED: Sugden, E, The Law of Vendors and Purchasers of Estates, 14th ed (1862)
T C Williams & J M Lightwood, Williams on Vendor and Purchaser, 4th ed (1936)

PARTIES: Gabriel Joseph Vella & 1 Or
v
Khalil Ayshan & 3 Ors

FILE NUMBER(S): SC 5332/05

COUNSEL: Plaintiffs: A Canceri
1st Defendant: J Haddad (solr)
2nd & 3rd Defendants: B Quinn

SOLICITORS: Plaintiffs: Byles Canceri Lawyers
1st Defendant: Thurlow Fisher
2nd & 3rd Defendants: Mack & Associates

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Thursday, 7 February 2008

5332/05 Gabriel Joseph Vella & 1 Or v Khalil Ayshan & 3 Ors

JUDGMENT

1 HIS HONOUR: On 7 July 2004, the plaintiffs (“the purchasers”) entered into a contract to buy from the first to third defendants (“the vendors”) a property at 20B Belford Street, Ingleburn on which a townhouse was then under construction.

2 On 26 April 2005, the purchasers refused to complete the purchase on the grounds that the vendors had failed to cause the residence to be constructed in a proper and tradesmanlike manner and in accordance with the plans and specifications approved by the Campbelltown…

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 Vella v Ayshan

Details

AGLC: Vella v Ayshan [2008] NSWSC 84
Case: [2008] NSWSC 84
Decision Date: 15 February 2008

CaseChat Overview and Summary

In the case of Vella v Ayshan, the dispute arose from a contract for the sale of property. The plaintiff, Vella, sought to enforce a contract for the sale of a property against the defendant, Ayshan. The crux of the issue was the description of the property in the contract and whether the property delivered matched that description. Additionally, the case involved considerations of general contractual principles, particularly the nature of consideration in the context of forbearance to exercise a right to rescind.

The primary legal issues before the court were whether the contract for sale accurately described the property, and if the defendant's forbearance to rescind the contract constituted valid consideration. The court had to determine if the property delivered to Vella matched the description in the contract and whether the defendant's decision not to terminate the contract due to the discrepancy in the property description constituted consideration for a new agreement.

The court found that the property delivered did not match the description in the contract, leading to a breach of the terms of the sale. Regarding consideration, the court held that the defendant's forbearance to exercise a right to rescind the contract due to the discrepancy constituted valid consideration. This forbearance was deemed sufficient to support the enforcement of the contract as modified. The court concluded that the contract remained enforceable despite the property discrepancy, as the defendant had received consideration for his forbearance.

The final orders of the court enforced the contract as modified, requiring the defendant to deliver the property as described in the contract. The court also awarded damages to the plaintiff for the breach of contract and ordered the defendant to pay the plaintiff's legal costs.

Orders