Kestral Properties v Homes Corporation [2000] NSWSC 1129

New South Wales Supreme Court

CITATION : Kestral Properties v Homes Corporation [2000] NSWSC 1129 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 5258 of 1999 HEARING DATE(S) : 29 November 2000 JUDGMENT DATE : 29 November 2000

PARTIES : Kestral Properties Pty Ltd (Plaintiff) The Homes Corporation of Australia Pty Ltd JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr T Hale SC (Plaintiff) Mr M Ashhurst (Defendant) SOLICITORS : The Law Firm of Solari's (Plaintiff) Church & Grace (Defendant) CATCHWORDS : CONVEYANCING - vendor and purchaser - valid termination of contract - forfeit of deposit - application for return of deposit - s55(2A) Conveyancing Act 1919 LEGISLATION CITED : Conveyancing Act 1919 s55(2A) CASES CITED : Terry v Permanent Trustee Australia Limited (1995) 6 BPR 97544 DECISION : See paragraphs 18, 19, 20

1 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

WEDNESDAY 29 NOVEMBER 2000

5258/99 KESTRAL PROPERTIES PTY LTD v THE HOMES CORPORATION OF AUSTRALIA PTY LTD

JUDGMENT

1. HIS HONOUR: As it is late in the day and to try to avoid any unnecessary suspense, I think it probably wise to say that the vendor succeeds in this case. I will now shortly give the reasons for having come to that decision.

2. The plaintiff entered into a contract to purchase from the vendor/defendant property 4-6 Ocean Street, Wollongong, under contract for sale dated 10 September 1999. The purchase price was $1,150,000. The contract provided for a deposit of 5 per cent, namely $57,500 and, in addition, provided in special condition 15(b) that, if the deposit agreed to be paid was less than 10 per cent and the vendor became entitled to forfeit the deposit, the purchaser would, upon demand, pay to the vendor the difference between the amount which would have been 10 per cent and the amount actually paid to the intent that the full 10 per cent of the purchase price would be forfeitable by way of deposit.