Blanco v Wan [2021] NSWSC 273

Supreme Court New South Wales

Medium Neutral Citation: Blanco v Wan [2021] NSWSC 273 Hearing dates: 3 February 2021, followed by written submissions Date of orders: 24 March 2021 Decision date: 24 March 2021 Jurisdiction: Equity Before: Darke J Decision: Plaintiff entitled to recover deposit of $80,000 plus interest earned thereon, plus $330. Catchwords: LAND LAW – contract for sale of land – deposit – penalty doctrine – purchaser agreed to pay $205,500 (being 10% of price) by instalments as deposit – purchaser paid $80,000 soon after exchange – remaining $125,500 was payable "on or before settlement" or upon "default" – purchaser failed to complete contract – vendor terminates and seeks to recover the $80,000 paid and also the unpaid $125,500 – held that the initial $80,000 was a deposit to which the principles concerning penalties do not apply – held that the $125,000 was not truly a deposit because it was not payable at a time when it would be an earnest of performance – held that the obligation to pay the $125,000 "on or before settlement" or upon "default" is penal – amount held to be extravagant and disproportionate to the interest of the vendor sought to be protected – vendor held entitled to recover the $80,000 but not the $125,500 CONTRACTS – unfair contracts – Contracts Review Act 1980 (NSW) – contract for the sale of land – agreement made after negotiation of terms – purchaser claimed that she had been exhausted and "gave in" to vendor's agent – whether contract should be set aside as being unjust – no material inequality of bargaining power – purchaser could protect her own interests – held that purchaser entered into contract with an adequate appreciation of its main terms – held that contract did not operate in an unconscionable, harsh or oppressive manner – held that contract should not be set aside Legislation Cited: Conveyancing Act 1919 (NSW), ss 66T, 66X Contracts Review Act 1980 (NSW), ss 7, 9 Cases Cited: Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30 Brien v Dwyer (1978) 141 CLR 378 Cloud Top Pty Ltd v Toma Services Pty Ltd [2008] NSWSC 568 Cole v Raykir Holdings Pty Ltd [2019] NSWSC 1017 Commissioner of Taxation v Reliance Carpet Co. Pty Ltd (2008) 236 CLR 342; [2008] HCA 22 Havyn Pty Ltd v Webster (2005) 12 BPR 22,837; [2005] NSWCA 182 Iannello v Sharpe (2007) 69 NSWLR 452; [2007] NSWCA 61 Kazacos v Shuangling International Development Pty Ltd (2016) 18 BPR 36,353; [2016] NSWSC 1504 Luu v Sovereign Developments Pty Ltd (2006) 12 BPR 23,629; [2006] NSWCA 40 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28 Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36 Romanos v Pentagold Investments Pty Ltd (2003) 217 CLR 367; [2003] HCA 58 Simcevski v Dixon (No 2) [2017] VSC 531 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 Category: Principal judgment Parties: Joseph Maxwell Blanco (Plaintiff) Li Wan (Defendant) Representation: Counsel: Mr R Colquhoun with Ms G Colquhoun (Plaintiff)