Wood v Lyons - [2009] NSWSC 419

CITATION: Wood v Lyons [2009] NSWSC 419

HEARING DATE(S): 22 April 2009

JUDGMENT DATE :
22 May 2009

JUDGMENT OF: Smart AJ

DECISION: Contract for sale and purchase of property validly terminated by plaintiffs.
Defendant ordered to authorise and direct agent to release deposit of $56,500.00 to plaintiffs.
Judgment for the plaintiffs for $65,256.00.

CATCHWORDS: Vendor and purchaser - Requisitions - Notice to Complete making time of essence - Contract of sale and purchase of residential property terminated for breach - release of deposit paid - Damages claimed and assessed

LEGISLATION CITED: Environmental Planning and Assessment Act 1997
Local Government Act 1919
Local Government Act 1993

CATEGORY: Principal judgment

CASES CITED: Balog v Crestani (1975) 132 CLR 289
Carpenter v McGrath (1996) 40 NSWLR 39
Crowe v Rindock Pty Ltd [2005] NSWSC 375
re Ford & Hill (1879) 10 Ch D 365

TEXTS CITED: Megarry and Wade (1984) The Law of Property

PARTIES: Donald Victor Wood & June Mary Wood (Plaintiffs)
Sean Lyons (Defendant)

FILE NUMBER(S): SC 2122/08

COUNSEL: SB Loughnan (Plaintiffs)
JJ Castrission (Defendant)

SOLICITORS: TH Walker (Plaintiffs)
JJCastrission (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Smart AJ

Friday 22 May 2009

2122/08 Donald Victor Wood & June Mary Wood v Sean Lyons

JUDGMENT

1 On 26 September 2007 Mr and Mrs Wood entered into a contract for the sale of their home at Killarney Heights to Sean Lyons as purchaser for $1,130,000 with a completion date of 7 November 2007. Time was not of the essence. Clause 15 of the General Conditions of Contract provided that the parties must complete by the completion date and if they did not, a party can serve a notice to complete if that party is otherwise entitled to do so. Special Condition 31.1 provided that for the purpose of Clause 15 the parties acknowledge that fourteen days shall be sufficient notice in any Notice to Complete issued in order to make time of the essence. The purchaser did not and could not comply with the Notice to Complete and the vendors thereafter purported to terminate the contract. The purchaser had been unable to provide or raise the funds necessary to complete the purchase. The vendors sue for the deposit and damages. In his cross-claim the purchaser asserts that the vendors, by serving their Notice to Complete, wrongfully repudiated the contract and claims return of that part of the deposit which he paid to a real estate agent as stakeholder.

2 Clause 32 of the Special Conditions of Contract provides:

“The vendor shall accept an initial deposit equal to 5% of the purchase price providing that the balance of the 10% deposit is paid upon completion or upon termination whichever in fact occurs.”

3 In about June 2007 the vendors offered their property for sale through Raine & Horne, Forrestville. The purchaser inspected the property on a number of occasions before exchange of contracts. On one occasion he inspected the property with an architect.

4 By letter dated 4…

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 Wood v Lyons

Details

AGLC: Wood v Lyons [2009] NSWSC 419
Case: [2009] NSWSC 419
Decision Date: 22 May 2009

CaseChat Overview and Summary

In the matter of Wood v Lyons, the parties were the vendor, Wood, and the purchaser, Lyons, in dispute over the sale and purchase of a residential property. The dispute was centred on the termination of the contract of sale and the release of a deposit paid by the purchaser. The case was heard in the Supreme Court of New South Wales. The vendor sought damages for the breach of contract and the purchaser argued that the contract should be terminated and the deposit returned.

The court had to determine whether the contract of sale was terminated for breach and whether the release of the deposit was appropriate. The court considered whether the notice to complete, which was served by the vendor, made time of the essence in the contract. The court also considered whether the breach was fundamental and whether the purchaser had any right to cure the breach. The court assessed the damages claimed by the vendor and determined whether they were appropriate.

The court held that the notice to complete made time of the essence in the contract and that the purchaser had failed to complete the contract within the required time. The court found that the breach was fundamental and that the purchaser had no right to cure the breach. The court also held that the damages claimed by the vendor were appropriate and assessed the damages accordingly. The contract of sale was terminated and the deposit paid by the purchaser was released to the vendor. The court ordered the vendor to pay the purchaser the amount of the deposit within a specified time.

Orders