Clark v Zele [2023] NSWCA 296

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clark v Zele [2023] NSWCA 296 Hearing dates: 28 November 2023 Date of orders: 11 December 2023 Decision date: 11 December 2023 Before: Payne JA [1]; Kirk JA [2]; Stern JA [3]. Decision: (1) Time for filing a notice of appeal is extended to 3 October 2023 under UCPR, r 51.16(2). (2) The appeal is dismissed. (3) Mr Clark is to pay Mr and Mrs Zele's costs of the appeal. Catchwords: CONTRACT – sale of residential property – the appellant and respondents entered into a contract for the sale of the appellant's property – completion did not occur by the completion date – the respondents sought and were granted specific performance and declaratory relief with the question of damages reserved – Parker J found deposit payable under contract of sale was paid in full by the respondents and was valid and binding – specific performance later became impossible – matter relisted before the Real Property List Judge – both parties purport to terminate the contract of sale – further hearing before Peden J to determine whether respondents are entitled to return of deposit paid under the contract of sale – appellant contends deposit not fully paid as sum of $3,750 had been forfeited pursuant to Conveyancing Act 1919 (NSW) s 66V – the respondents rescinded an earlier contract during the cooling off period – appellant contends forfeited amount cannot form part of the deposit under the contract of sale – Peden J declared the respondents validly terminated contract – Peden J ordered return of deposit to the respondents – Peden J's orders made in accordance with earlier finding of Parker J that deposit was paid by respondents in full – whether Peden J erred in returning deposit amount to respondents – where appellant does not challenge earlier judgment or orders of Parker J. APPEALS – procedure – appellant filed notice of intention to appeal on 10 July 2023 – appellant filed notice of appeal on 13 September 2023 – appellant served notice of appeal on 3 October 2023 – notice of appeal served out of time – respondent does not oppose extension of time for filing notice of appeal – extension of time for filing notice of appeal allowed pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 51.16(2). Legislation Cited: Conveyancing Act 1919 (NSW), ss 66U, 66V(2), 66V(3), 66V(8), 66X Supreme Court Act 1970 (NSW), ss 101(1), 101(2)(r) Uniform Civil Procedure Rules 2005 (NSW), rr 51.16(1), 51.16(2). Cases Cited: Despot v Registrar General of New South Wales [2016] NSWCA 5 University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 Zele v Clark [2022] NSWSC 925 Category: Principal judgment Parties: Richard Bernard Clark (Appellant) Paul Stefan Zele (First respondent) Anne Margaret Zele (Second respondent) Representation: Counsel: