Gaggin v Lemari [2000] NSWSC 856

Reported Decision : [2000] 10 BPR 18,381 (2001) NSW ConvR 56-002

New South Wales Supreme Court

CITATION : Gaggin v Lemari [2000] NSWSC 856 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3167/2000 HEARING DATE(S) : 08/08/2000 JUDGMENT DATE : 8 August 2000

Janelle Mary Gaggin (P1) Harry Thomas Johnson (P2) PARTIES : Russell Paul Lemari (D1) Golden Key Real Estate Pty Ltd t/as Richardson & Wrench Strathfield (D2) Westpac Banking Corporation (D3) JUDGMENT OF : Young J

COUNSEL : P Walsh (P) D R Pritchard (D3) SOLICITORS : Paton Lawyers (P) Henry Davis York (D3) CATCHWORDS : CONVEYANCING [67]- Contract for sale- 1996 edition cl 20.6.3- Insufficient to authorise summons to be served on solicitor named in contract. DECISION : See para 12

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION YOUNG J TUESDAY 8 AUGUST 2000

3167/2000 - GAGGIN v LEMARI

JUDGMENT 1 HIS HONOUR: These are proceedings brought by the vendors of a property at Strathfield against the purchaser for a declaration that the contract for sale has been terminated and that the deposit has been forfeited. 2 The contract was entered into in the 1996 edition of the standard form on 18 February 2000. The purchase price was $750,000 and a deposit of $75,000 was paid by the first defendant, the purchaser, to the agent, Richardson & Wrench at Strathfield. The contract nominated the completion date as the 42nd day after the date of the contract, which was 31 March 2000. 3 The purchaser's solicitors asked for requisitions on title shortly after exchange and these were answered on 28 February 2000. There was no demur to any of the answers. A draft transfer was signed and the vendors appear to have done everything necessary to arrange for completion. 4 Shortly before 31 March 2000 the vendors' solicitors spoke to the purchaser's solicitors nominating a place for settlement. There were then telephone conversations between the solicitors to the effect that the purchaser's money had been frozen by court order and he could not complete. 5 On 3 April 2000, pursuant to the authority given by clause 15 of the contract, the plaintiffs issued a notice to complete. This was a fourteen or fifteen day notice. Additional clause 31 of the contract provided for a fourteen day notice. 6 The vendors' solicitors again fixed a time and place for completion on 18 April 2000. During the conversation between the solicitors it was made clear that the purchaser was not able to complete. On 18 May 2000 the vendors terminated the contract. 7 The current summons was issued on 12 July 2000. 8 The matter has been listed today along with three other sets of proceedings affecting the first defendant. In those other proceedings a solicitor appeared for the first defendant. No solicitor appears for the first defendant in the current proceedings. However, it is quite clear from: (a) the affidavit of Keith Williams, sworn 1 August 2000, paragraph 25; and (b) the fact that the solicitor for the first defendant was present in court when this matter was mentioned this morning