Wilde v Anstee (No.2) [1999] NSWSC 819

New South Wales Supreme Court CITATION : Wilde v Anstee (No.2) [1999] NSWSC 819 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 5095/97 and 4088/97 HEARING DATE(S) : 11 August 1999 JUDGMENT DATE : 11 August 1999

5095/97 Gregory Alfred Wilde (P1) Gladys May Wilde (P2) Matthew Thomas Anstee (D1) PARTIES : Burridge Realty Pty Limited (D2) 4088/97 Matthew Thomas Anstee (P1) Burridge Realty Pty Limited (P2) Gregory Alfred Wilde (D1) Gladys May Wilde (D2) JUDGMENT OF : Austin J

COUNSEL : M Fitzgerald (Sol)(P) S Burchett (D) SOLICITORS : Helliars City (P) Brock Partners (D) CATCHWORDS : Practice and procedure - slip rule - procedure where recollections differ as to events at hearing - form of orders for assessment by Master - costs - jurisdiction of District Court CASES CITED : Ex parte McEvoy (1868) 8 SCR 16 Smith v Pattison (1934) 51 WN 137 DECISION : Orders made in plaintiff's favour, with costs

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

11 AUGUST 1999

5095/97 & 4088/97 - GREGORY ALFRED WILDE & ANOR V MATTHEW THOMAS ANSTEE & ANOR

JUDGMENT

1 HIS HONOUR: This is a vendor and purchaser matter in which I handed down reasons for judgment on 23 June 1999. I decided that the plaintiffs, the vendors, had validly terminated the contract for the sale of their property and that they were entitled to an order that the second defendant (the real estate agent) pay them the deposit which it held together with interest which the deposit had earned. In my opinion the plaintiffs were also entitled to recover damages for breach of contract. I said (at paragraph 70 of my reasons for judgment) that since no evidence was led for the purpose of quantifying the plaintiffs' damages, I proposed to make an order for the assessment of damages by the Master. 2 The first defendant, the purchaser, had a cross-claim in the proceedings in which he sought a declaration that he was entitled to the return of the deposit plus interest, and an order that the real estate agent pay him the deposit and interest. In the alternative, he sought an order under s 55 of the Conveyancing Act for repayment of the deposit, with or without interest. He also claimed damages for breach of contract. It followed from the reasoning which I set out in my written reasons for judgment of 23 June 1999 that in my opinion the first defendant was not contractually entitled to the return of the deposit and interest, nor to an award of damages for breach of contract. In paragraph 70 I said that the cross-claim should be dismissed, thereby implying (though I did not expressly deal with the matter) that the first defendant's alternative claim under s 55 had not succeeded. 3 Now there are three further issues to deal with, namely whether my reasons for judgment contain a 'slip' which should be corrected; the form of the orders which are to be made; and the question of costs.