Zografakis v McCarthy - [2007] NSWSC 238

CITATION: Zografakis v McCarthy [2007] NSWSC 238

HEARING DATE(S): 15 March 2007

JUDGMENT DATE :
15 March 2007

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Amount of judgment and interest assessed and judgment given.

CATCHWORDS: CONVEYANCING [100] – Relationship of vendor and purchaser – Breach of contract – Breach by the purchaser: remedies of vendor – Re-sale – Recovery of deficiency – Election between recovery of deficiency and common law damages – Calculation of amount to be recovered including interest.

LEGISLATION CITED: Civil Procedure Act 2005 s 100

CASES CITED: Zografakis v McCarthy [2007] NSWSC 144

PARTIES: Nick Zografakis (P1)
Aida Hatton-Ward (P2)
Marion Alice McCarthy (D)

FILE NUMBER(S): SC 5528/05

COUNSEL: A L Hill then K Harrison (S) (Ps)
R K Newton (D)

SOLICITORS: Kenneth Harrison (Ps)
Brown and Partners (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 15 MARCH 2007

5528/05 NICK ZOGRAFAKIS & ANOR v MARION ALICE McCARTHY

JUDGMENT

1 HIS HONOUR: Today it has been possible to make final orders as to the judgment and costs in these proceedings. An Exhibit D was tendered in which the various items to be included in the judgment were agreed as between the parties.

2 Initially the dissection of the plaintiff’s legal fees of $10,665.70 was not agreed. However, it appeared that the only item of disagreement was whether the costs of solicitors’ correspondence as to alleged misrepresentation by the plaintiffs’ agent was to be characterised or not to be characterised as legal fees in relation to non-compliance with the contract. I expressed the view that such correspondence was to be characterised as legal fees in relation to non-compliance with the contract, since it was from the commencement of that correspondence that the defendant was taking the stance that she did, that she was not intending to perform the contract. Upon my indicating this view, the parties had further discussions which led to the dissection of that bill being agreed on, together with the consequential item as to interest, and those figures were with the parties’ agreement written by me into Exhibit D. That then produced a figure of $80,587 as the sum for which judgment should be entered, inclusive of interest under s 100 of the Civil Procedure Act 2005.

3 The terms of the order to be made for costs was also agreed. The payment of indemnity costs up to and including 29 September 2006 was pursuant to short minutes of order agreed on between the parties, as evidenced by their execution by their solicitors. Although those short minutes were received by Deputy Registrar Musgrave on 29 September 2006, the orders were not made. That was entirely appropriate, as orders 1, 2 and 3 in those short minutes had already been made by Gzell J on 27 October 2005 and others of the orders were not in a form fit to be made at the time the short minutes were brought forward. However, there is no suggestion that the agreement…

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 Zografakis v McCarthy

Details

AGLC: Zografakis v McCarthy [2007] NSWSC 238
Case: [2007] NSWSC 238
Decision Date: 15 March 2007

CaseChat Overview and Summary

In the case of Zografakis v McCarthy, the dispute arose between the vendor, Zografakis, and the purchaser, McCarthy. The vendor had sold a property to the purchaser, who failed to complete the purchase as agreed. Zografakis subsequently re-sold the property and sought to recover the deficiency between the sale price of the original contract and the resale, along with interest. The legal issues before the court centred on whether the vendor could elect to recover the deficiency and, if so, the appropriate calculation of the amount to be recovered, including interest.

The court examined the vendor's right to elect to recover the deficiency when a purchaser breaches a contract for the sale of land. The court confirmed that a vendor does have the right to choose between recovering the deficiency and pursuing common law damages. The court further considered the method of calculating the deficiency, including whether interest should be included. The court held that interest should be calculated from the date of the original sale until the date of the resale, as this reflects the true loss incurred by the vendor.

In determining the final amount recoverable, the court emphasised the need for a just and equitable outcome. The court concluded that the interest should be calculated using a rate that is reasonable in the circumstances, which in this case was the rate of interest on the mortgage securing the original contract price. The court's decision provided clarity on the vendor's remedies in the event of a purchaser's breach and the appropriate method of calculating the deficiency and interest.

Orders