Alexakis v Wan [2021] NSWSC 367

Supreme Court New South Wales

Medium Neutral Citation: Alexakis v Wan [2021] NSWSC 367 Hearing dates: 29-30 March 2021 Date of orders: 12 April 2021 Decision date: 12 April 2021 Jurisdiction: Equity Before: Darke J Decision: Defendants held to be entitled to terminate the contract and recover the deposit. Catchwords: LAND LAW – contracts for the sale of land – deposit payable in two instalments – second instalment payable "on the 4th month after the contract date" – contract dated 4 April 2019 – whether second instalment required to be paid by 4 August 2019, or by 31 August 2019 – held that payment was required by 4 August 2019 – vendors held to be entitled to terminate contract on 5 August 2019 – Conveyancing Act 1919 (NSW) s 181(1)(d) definition of "month" as "calendar month" – Interpretation Act 1987 (NSW) s 21 definition of "calendar month" EQUITY – equitable remedies – relief in respect of exercise of legal rights – exercise of right to terminate contract for sale of land – breach giving rise to right of termination brought about by purchaser's mistake – mistake not caused or contributed to by conduct of vendors – serious breach in failing to pay part of deposit within time agreed to be essential – no substantial loss or prejudice to vendors if contract ordered to be performed – not unconscientious of vendors to rely upon their termination – equitable relief declined – forfeiture of deposit of 5% of the price not unjust or inequitable in the circumstances – no order made for return of deposit under s 55(2A) of Conveyancing Act 1919 (NSW) Legislation Cited: Conveyancing Act 1919 (NSW) ss 55(2A), 181 Interpretation Act 1987 (NSW) s 21 Cases Cited: Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd (2018) 19 BPR 38,569; [2018] NSWCA 114 Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd [2017] NSWSC 1230 Brien v Dwyer (1978) 141 CLR 378; [1978] HCA 50 Dodds v Walker [1981] 1 WLR 1027 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Re Weston Application; Employers Mutual Indemnity (Workers Compensation) Ltd v Omni Corporation Pty Ltd (2009) 255 ALR 362; [2009] NSWSC 264 Romanos v Pentagold Investments Pty Ltd (2003) 217 CLR 367; [2003] HCA 58 Rushcutters Bay Developments Pty Ltd v Dragon Asset Investment Pty Ltd (No 2) (2017) 18 BPR 37,025; [2017] NSWSC 866 Shiloh Spinners v Harding [1973] AC 691 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 Category: Principal judgment Parties: Theo Alexakis (Plaintiff/Cross-Defendant) Chi Hing Wan (First Defendant/First Cross-Claimant) Kwan Yee Chan (Second Defendant/Second Cross-Claimant) Representation: Counsel: Mr D R Pritchard SC with Mr M H Southwick (Plaintiff/Cross-Defendant) Mr D W Rayment with Mr A Smorchevsky (Defendants/Cross-Claimants)