IDAMENEO NO 9 PTY UNITED v JOVAN [1991] NSWCA 298

IDAMENEO NO 9 PTY UNITED v JOVAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and PRIESTLEY JJA 6 March 1991, 6 March 1991

[1991] NSWCA 298

CONTRACT — Option — sale of domestic dwelling to estate agent -whether "unjust" under Contracts Review Act 1980 — trial judge (Bryson J) finds "unjust" because (a) the agreed price was well below market value; (b) the company was without assets so that the parties were unequal in the obligation accepted by option and (c) the vendor bound himself to sell to the purchaser for 4 months for a consideration of $1 and the vendor did not understand the nature of the agreement he signed held (dismissing appeal) (1) The conclusions were open to the trial judge and, being in part based on his impressions of the vendor and his capacities in the English language, were immune from disturbance by the Court of Appeal. Jones v Hyde (1989) 63 ALJR 349, 351; Abalos v Australian Postal Commission (1991) 65 ALJR 11, 14 applied; (2) Upon the conclusions of fact made, the conclusion that the option was "unjust" was not shown to have been wrong. Observations by Kirby P on the care to be exercised in appellate review of a finding of injustice under the Contract Review Act because of the "open ended" nature of the criteria for orders under the Act. Observations by Mahoney JA on the need to consider the positions of both sides of the a contract impugned as unjust. WORDS AND PHRASES — "unjust". Contracts Review Act 1980.

Kirby P The appeal before the court comes from orders made by Bryson J. It concerns a dispute which arose between the parties about an option granted by one of them to the other for the purchase of a domestic dwelling in Bayview Street, Gladesville.

An option is signed for sale of a domestic dwelling: The dwelling is owned in his own name by Mr Jovan Bandeski (the respondent). It is the home in which he lives with his family. The respondent is a migrant to this country from Macedonia in Yugoslavia. He arrived here some twenty years ago. The option was granted by him to Idameneo No 9 Pty Limited (the appellant). The appellant is a company engaged in property development. It is controlled by Mr Jacobus Johannes van der Mark and Mrs Naomi Wilson. Mr van der Mark, himself a migrant from the Netherlands, is a real estate agent. His company was concerned in buying properties in the Gladesville area.