RADIN and ANOR v FOLLADOR and ANOR [1994] NSWCA 255

RADIN v FOLLADOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY JA 17 June 1994

[1994] NSWCA 255

Handley JA Mrs Judith Radin and Mr Michael Radin have appealed to this Court as of right from a decision of Windeyer J of 6 June 1994. By that decision his Honour refused specific performance of a contract for the sale of land which had been sought by Mr and Mrs Radin as the purchasers and on the cross-claim of the vendors his Honour declared that the contract of sale had been validly terminated by them and the deposit forfeited. His Honour declined to order repayment of the deposit to the purchasers under s55(2)(A) of the Conveyancing Act. He ordered that caveats on the title be lifted by the purchasers forthwith and that they authorise the agent to account to the vendors for the deposit. The latter order was made in accordance with para2 of the vendors' cross-claim.

Since the order of Windeyer J the purchasers have complied with the order for the removal of the caveats but have applied to this Court by notice of motion dated 15 June 1994 for a stay of proceedings of the orders of Windeyer J. The only practical content for this application is the order on the cross-claim that the purchasers direct the agent in writing to account to the vendors for the deposit paid under the contract of sale.

The appellants wish to consider their position before proceeding with the appeal and to date have taken advantage of the new rules which allow what might loosely be called a holding appeal to be filed on payment of a lesser fee. In the circumstances, it is appropriate that there should be a short stay of execution under the orders of Windeyer J so as to preserve the deposit and to enable the appellants to obtain advice and decide whether they will proceed with their appeal. Accordingly I order that O2 made by Windeyer J on 6 June 1994 in the cross-claim be stayed unto and including Spm on Friday, 8 July 1994. I adjourn this motion to 9.30am on Friday, 8 July 1994.