Young v Wiseman [2022] NSWDC 53

District Court New South Wales

Medium Neutral Citation: Young v Wiseman [2022] NSWDC 53 Hearing dates: 7 March 2022 and 8 March 2022 Date of orders: 11 March 2022 Decision date: 11 March 2022 Jurisdiction: Civil Before: Priestley SC, DCJ Decision: 1. Judgment for the plaintiff in the sum of $133,378.92, subject to any adjustment for further interest until the date of judgment. 2. Subject to any further submissions made in relation to costs the defendant pay the plaintiffs' costs. Catchwords: CONTRACTS — Breach of contract — Consequences of breach — Contract for Sale of Property Cases Cited: Bydand Holdings Pty Ltd v Pineland Property Holdings Pty Ltd [2009] NSWSC 1159 Galafassi v Kelly [2014] NSWCA 190 Category: Principal judgment Parties: Scott Young (Plaintiff) David Wiseman (Defendant) Representation: James Counsel for the Plaintiff Maconachie Counsel for the Defendant File Number(s): 2020/00322972 Publication restriction: Unrestricted.

Judgment

Introduction and issues 1. The plaintiffs, Scott John Young and Rowena Elise Young are husband and wife. The plaintiffs as vendors entered into a contract ("the initial contract") with the defendant, David Charles Clive Wiseman as purchaser, for the sale ("the first sale") of their home at 430 Crossmaglen Road Bonville New South Wales ("the Bonville property") for a price of $1.35M. There is no issue that the plaintiffs validly terminated the initial contract. The plaintiffs then entered into a further contract of sale ("the second contract") to sell ("the second sale") the property to Glen and Rosemarin Zacher ("the Zachers") for a price of $1.165M. The second sale under the second contract was completed. In accordance with the terms of the initial contract the plaintiffs are entitled to sue to recover either the deficiency on the resale price together with costs and expenses arising out of the purchaser's non-compliance or to sue for damages for breach of contract; see clause 9.3 of the initial contract. In this case the plaintiffs pursue the former remedy. 2. Much of the plaintiff's claim is admitted on the pleadings. The whole of the statement of claim is admitted except for paragraphs 14, 15, 16 and 17, which plead terms of the initial contract relating to the deposit provisions, and paragraphs 37 through to 42 inclusive which go to the issue of damages. 3. The affidavit material of the plaintiffs included only the front page of the initial contract. Once the contracts were admitted into evidence paragraphs 14-17 were established. There was objection to the tender of the contracts on the basis that they had not been annexed to an affidavit, and no notice of the tender of them had been given. In support of the objection it was said that had they been in the evidence of the case would have been conducted in some other way although the defendant was unable to identify any way in which the tender of the written contract would be met either by way of evidence or even to identify some kind of argument that might have been able to be mounted. 4. The real issue in the case is that raised by paragraphs 3 through to 7 inclusive of the defence which in short is to allege that the plaintiffs failed to take reasonable steps to achieve a resale of the property at or near the market value. It is alleged that had the plaintiffs taken reasonable actions a better price would be realised. The defence does not identify those actions, but rather simply asserts the subsequent sale to the Zachers was at an undervalue. 5. The cross examination of both the plaintiffs and of Mr Bird (the real estate agent who acted on the first and second sales) concentrated on what was done in preparing or marketing the property for sale after the initial contract had been terminated. 6. The case having now been run it can be said there are two points to the defendant's argument. The first is the matter just mentioned, that is that what occurred was a sale at less than market value. 7. The second was to assert or at least put that it was never the plaintiffs' intention to properly market the property or more accurately never their intention to conduct an eight week marketing campaign. The proposition being put extended to saying that the dealings with the agent and the proposed marketing campaign was engaged in simply to add what might be described as contrived legitimacy to what the plaintiffs were doing when all the time it was their intention to sell to the ultimate purchasers.