Young v Wiseman

[2022] NSWDC 53

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Young v Wiseman [2022] NSWDC 53

Hearing dates:

7 March 2022 and 8 March 2022

Date of orders:

11 March 2022

Decision date:

11 March 2022

Jurisdiction:

Civil

Before:

Priestley SC, DCJ

Decision:

1. Judgment for the plaintiff in the sum of $133,378.92, subject to any adjustment for further interest until the date of judgment.

2. Subject to any further submissions made in relation to costs the defendant pay the plaintiffs' costs.

Catchwords:

CONTRACTS — Breach of contract — Consequences of breach — Contract for Sale of Property 

Cases Cited:

Bydand Holdings Pty Ltd v Pineland Property Holdings Pty Ltd [2009] NSWSC 1159

Galafassi v Kelly [2014] NSWCA 190

Category:

Principal judgment

Parties:

Scott Young (Plaintiff)
David Wiseman (Defendant)

Representation:

James Counsel for the Plaintiff
Maconachie Counsel for the Defendant

File Number(s):

2020/00322972

Publication restriction:

Unrestricted.

Judgment

Introduction and issues

1. The plaintiffs, Scott John Young and Rowena Elise Young are husband and wife. The plaintiffs as vendors entered into a contract (“the initial contract”) with the defendant, David Charles Clive Wiseman as purchaser, for the sale (“the first sale”) of their home at 430 Crossmaglen Road Bonville New South Wales (“the Bonville property”) for a price of $1.35M. There is no issue that the plaintiffs validly terminated the initial contract. The plaintiffs then entered into a further contract of sale (“the second contract”) to sell (“the second sale”) the property to Glen and Rosemarin Zacher (“the Zachers”) for a price of $1.165M. The second sale under the second contract was completed. In accordance with the terms of the initial contract the plaintiffs are entitled to sue to recover either the deficiency on the resale price together with costs and expenses arising out of the purchaser's non-compliance or to sue for damages for breach of contract; see clause 9.3 of the initial contract. In this case the plaintiffs pursue the former remedy.

2. Much of the plaintiff’s claim is admitted on the pleadings. The whole of the statement of claim is admitted except for paragraphs 14, 15, 16 and 17, which plead terms of the initial contract relating to the deposit provisions, and paragraphs 37 through to 42 inclusive which go to the issue of damages.

3. The affidavit material of the plaintiffs included only the front page of the initial contract. Once the contracts were admitted into evidence paragraphs 14-17 were established. There was objection to the tender of the contracts on the basis that they had not been annexed to an affidavit, and no notice of the tender of them had been given. In support of the objection it was said that had they been in the evidence of the case would have been conducted in some other way although the defendant was unable to identify any way in which the tender of the written contract would be met either by way of evidence or even to identify some kind of argument that might have been able to be mounted.

4. The real issue…