Tram v Innerwest Property Partners Pty Ltd & Anor [2024] NSWDC 155

District Court New South Wales

Medium Neutral Citation: Tram v Innerwest Property Partners Pty Ltd & Anor [2024] NSWDC 155 Hearing dates: 26 March and 19 April 2024 Date of orders: 8 May 2024 Decision date: 08 May 2024 Jurisdiction: Civil Before: Weber SC DCJ Decision: See Orders Catchwords: CIVIL – Enforceability of a Deed – Questions of Illegality Legislation Cited: Cheques Act 1986 (Cth) Civil Procedure Act 2005 (NSW) Corporations Act 2000 (Cth) Duties Act 1997 (NSW) Cases Cited: Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 Iannotti v Corsaro (1984) 36 SASR 137 Jones v Dunkel (1959) 101 CLR 298 REW08 Projects Pty Ltd v PNC Lifestyle Investments Pty Ltd (2017) 95 NSWLR 458 Thomas v Hollier (1984) 156 CLR Texts Cited: Nil Category: Principal judgment Parties: Plaintiff: Tan Hieu Tram First Defendant: Innerwest Property Partners Pty Ltd Second Defendant: Mohammad Abedin Representation: Counsel: Plaintiff: Mr R Size Defendants: Mr D Brezniak

Solicitors: Plaintiff: David Leamey Solicitor and Barrister Defendant: Raihani Mayaz File Number(s): 2023/165280 Publication restriction: None

JUDGMENT

Introduction 1. The plaintiff (Mr Tram) was the sole director of Tram Holdings Pty Ltd (Tram Holdings). Tram Holdings owned a property at 3/164 Darlinghurst Road, Potts Point (the Property). The first defendant (Innerwest) is a company which conducts a real estate agency. The second defendant (Mr Abedin) was its sole director. Mr Abedin's wife (Ms Tang) also worked for Innerwest. Mr Tram engaged Innerwest to sell the Property. 2. Mr Abedin and Ms Tang found a purchaser for the Property. On 1 August 2022, Mr Tram executed a contract for sale of the Property on behalf of Tram Holdings (the Contract). The Contract stated a purchase price of $3,500,000 including a deposit of $350,000 (CB 48). Completion of the sale occurred on 31 October 2022 (CB 59). Tram Holdings has received the deposit (minus an agency fee of $60,000) and balance of the stated purchase price. 3. Mr Tram asserts that he is entitled to be paid a further $550,000. 4. The basis for this assertion is Mr Tram's claim that the price stated in the Contract did not represent the true purchase price for the sale of the Property. He gave evidence that Mr Abedin found a buyer who wanted to pay part of the price in cash. He says that Ms Tang negotiated a price of $3,500,000 plus $550,000 in cash. 5. Subsequently, Mr Abedin signed a deed committing both he and Innerwest to pay $550,000 to Mr Tram within 60 days (the Deed) (CB 132); Mr Abedin and Innerwest failed to pay the $550,000 as required in the Deed. 6. Mr Tram's case is that subsequently Mr Abedin told him that in order to pay the sum of $550,000, he had electronically transferred $100,000 to Mr Tram. He then provided him with a cheque for $450,000 (the Cheque) (CB 67). It seems clear however that the transfer of $100,000 never eventuated, and the Cheque was dishonoured. 7. Mr Tram's sues alleging that Mr Abedin and Innerwest have breached the terms of the Deed by failing to pay him $550,000 within 60 days of 1 August 2022. There is no dispute about this failure to pay. 8. Mr Abedin disputes an obligation to pay any monies pursuant to the Deed. The fundamental basis of his position is his assertion that he did not sign the Deed, and thus was not bound by its terms. 9. Mr Tram pleaded an alternative case that Innerwest is liable pay him damages in the amount of $450,000 plus interest. This alternate cause of action is pleaded pursuant to ss 71 and 76(1)(a) of the Cheques Act 1986 (Cth) (Cheques Act). This cause of action is based on the fact that that the Cheque was dishonoured. 10. Finally, the defendants say on the other hand that the Cheque was delivered in escrow and that it was banked in breach of the conditions pursuant to which it was drawn and procured to Mr Tram. 11. Finally, the defendants also allege that "the claim for part payment (consideration) from the purchaser" is unenforceable as an agreement contrary to public policy (see Amended Defence at [18]).