Robert Gabrial Safi v James Wallace Doran [2008] NSWDC 326

New South Wales District Court

CITATION: Robert Gabrial Safi v James Wallace Doran [2008] NSWDC 326

HEARING DATE(S): 3/11/08

JUDGMENT DATE: 7 November 2008

JURISDICTION: Civil

JUDGMENT OF: Rolfe DCJ

DECISION: Verdict for the Plaintiff against the Defendant in the amount of $62,500.

CATCHWORDS: Concurrent contracts for the sale of an apartment - Notices to complete and extensions of time for completion - Claim by Plaintiff for recovery from Defendant of amount equal to deposit - Consideration of whether Plaintiff was ready, willing and able to complete - Repudiation by Defendant - Whether Plaintiff required to serve notice of termination

LEGISLATION CITED: Civil Procedure Act 2005

McNally and Ors v Waitzer (1981) 1 NSWLR 294 CASES CITED: Foran v Wight (1989) 168 CLR 385 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 433 Jones v Dunkel (1959) 101 CLR 298

PARTIES: Robert Gabrial Safi (Plaintiff) James Wallace Doran (Defendant)

FILE NUMBER(S): 5898/06

COUNSEL: A Rogers (Plaintiff) G P McNally SC with V McWilliam (Defendant)

JUDGMENT

1 On 28 November 2001 the plaintiff, Robert Gabriel Safi, entered into a contract (the "First Contract") for the purchase of apartment M804 and car space in Mountain Residential Apartments, Quadrant Off Broadway, Broadway, Ultimo ("the Property"). The purchase price was $395,700 which included a deposit of $39,570 which was paid on exchange to the vendor, College Square Residential Pty Limited ("the Vendor") a company in the Australand Group.

2 On 12 September 2003 the plaintiff entered into a contract (the "Contract") for the sale of the Property to the defendant, James Wallace Doran, for the price of $625,000 which included a deposit of $62,500. The defendant did not pay the deposit.