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 as to costs was not binding and it is appropriate that I now make an order for costs incorporating that agreement.

4 The defendant has asked for a two month stay of execution to permit the property to be sold to provide funds for payment of the judgment. The plaintiffs, quite properly, conceded that this is not an unreasonable request and a stay will be granted accordingly.

5 I should also add for the record, since some doubt was raised by Mr A L Hill, of counsel for the plaintiffs, that it was the Court’s intention under the judgment earlier delivered (see Zografakis v McCarthy [2007] NSWSC 144) that the plaintiffs should not be awarded any interest on the balance of purchase price of $1,100,000 after 15 August 2005, on which day the contract was terminated. The omission of the award of any such interest was intentional and not accidental.

6 The orders of the Court will be:

1 Judgment for the plaintiffs for $80,587 inclusive of interest under s 100 of the Civil Procedure Act 2005.

2 Order that the defendant pay the plaintiffs’ costs incurred before 30 September 2006 on the indemnity basis and the plaintiffs’ costs incurred after 29 September 2006 on the ordinary basis.

3 Order that execution be stayed up to and including 15 May 2007.

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