Zele v Clark [2022] NSWSC 925

Supreme Court New South Wales

Medium Neutral Citation: Zele v Clark [2022] NSWSC 925 Hearing dates: 11 July 2022 Date of orders: 11 July 2022 Decision date: 11 July 2022 Jurisdiction: Equity - Expedition List Before: Parker J Decision: See [37]-[38] Catchwords: REAL PROPERTY – specific performance – contract for the purchase of residential property – enforceability – vendor alleges contracts exchanged without his authority – vendor refusing to complete – hardship – futility – two registered mortgages over the property – caveats over the property – specific performance ordered Legislation Cited: Real Property Act 1900, s 57(2)(b) Cases Cited: Caird Seven Pty Ltd v Attia and Shopsmart Pharmacy Franchising Pty Ltd (No 3) (2016) 92 NSWLR 457 Dougan v Ley (1946) 71 CLR 142 Ryde Ex Services Memorial and Community Club Ltd v Kaloriziko Ryde Pty Ltd [2017] NSWSC 1576 Category: Principal judgment Parties: Paul Stefan Zele (First Plaintiff) Anne Margaret Zele (Second Plaintiff) Richard Bernard Clark (Defendant) Representation: Counsel: P Folino-Gallo (First and Second Plaintiffs)

In person: R Clark (Defendant)

Solicitors: TH Walker (First and Second Plaintiffs) File Number(s): 2022/83507 Publication restriction: Nil

Judgment – EX TEMPORE Revised from transcript and annotated; issued 14 July 2022 1. These are proceedings for specific performance which have been brought before the Court on an expedited basis. The subject matter of the proceedings is a residential property at Wyong. The plaintiffs are the purchasers under a written contract for the sale of land dated 17 December last year. The defendant is the vendor under that contract. 2. The contract provided for a purchase price of $1.5 million with a deposit of $150,000. That deposit included a 0.2% holding deposit which was paid before the contract was signed. 3. The contract provided for a date of completion of 31 January this year. Following the failure by the defendant, Mr Clark, to complete on that date, a notice to complete was issued which was then withdrawn pursuant to a provision of the contract. It is not necessary to go into the details of what happened. The plaintiffs, Mr and Mrs Zele, rely on a notice to complete which is dated 1 March and provided for completion to take place on 16 March. 4. Mr Clark, who represented himself, raised two broad objections to the Zeles' application for specific performance. First, he contested that the contract was enforceable. Alternatively, if the contract was enforceable Mr Clark contended that the Court should refuse specific performance and remit the Zeles to a claim for damages at common law.