Romanos v Pentagold Investments Pty Limited [2003] HCA 58

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

JOSEPH JOHN ROMANOS & ANOR APPELLANTS

AND

PENTAGOLD INVESTMENTS PTY LIMITED & ANOR RESPONDENTS

Romanos v Pentagold Investments Pty Limited [2003] HCA 58

7 October 2003

S356/2002

ORDER

1. Appeal allowed with costs. 2. Set aside the orders of the Court of Appeal of New South Wales made on 12 December 2001 and, in lieu thereof, order that: 3. the appeal to that Court be dismissed with costs; 4. the cross-appeal to that Court be allowed with costs; and 5. it be declared that the total sum of $50,000 paid as deposits under the contracts for sale is forfeited to the appellants.

On appeal from the Supreme Court of New South Wales

Representation:

B A J Coles QC with D L Warren for the appellants (instructed by Robilliard Plowman Herat)

D P F Officer QC with R J Powell and S W Balafoutis for the respondents (instructed by Bolsters Solicitors)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Romanos v Pentagold Investments Pty Limited

Vendor and purchaser – Contracts for sale of land – Balance of deposit to be paid on approval of development application – Time of essence – Default by purchasers – Notice of termination – Balance of deposit paid following day – Specific performance – Whether unconscientious for vendors to exercise right of termination – Whether termination effective in absence of prior notice to purchasers requiring payment of deposit within reasonable time.

Equity – Relief against forfeiture – Contracts for sale of land – Default by purchasers – Whether unconscientious for vendors to exercise right of termination – Whether default occasioned by "accident" – Whether relief on the ground of "accident" available in face of essential time stipulation.