Assadourian v Assadourian [2001] NSWSC 1054

New South Wales Supreme Court

CITATION : Assadourian v Assadourian [2001] NSWSC 1054 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3521 of 2000 HEARING DATE(S) : 13 November 2001 JUDGMENT DATE : 21 November 2001

Nauvart Assadour Assadourian (Plaintiff) PARTIES : Malaka Assadourian (First Defendant) Artin Assadourian (Second Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : D.G. Charles (Plaintiff) R Killalea (Defendants) SOLICITORS : PricewaterhouseCoopers Legal (Plaintiff) K Le Lievre (Defendants) CATCHWORDS : CONTRACTS - plaintiff and defendants settled a previous action by signing a deed of release - terms of deed incuded plaintiff pay some money to defendants' solicitors to be paid to defendants upon their giving vacant possession of a property by a certain date - defendant did not give vacant possession - claim by both sides for balance of funds - CONTRACTS - construction - whether date of possession is essential term - whether entitled to money conditional upon possession on fixed date - whether claim of plaintiff only in damages rather than return of moneys CASES CITED : Henderson v Henderson (1843) 3 Hare 100 [67 ER 313] Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 DECISION : See paragraph 15

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J WEDNESDAY 21 NOVEMBER 2001 3521/00 NAUVART ASSADOUR ASSADOURIAN V MALAKA ASSADOURIAN & ORS Judgment 1 This action is, I hope, the last substantive one arising out of a difficult dispute and difficult litigation over property, No. 85 Kleins Road, Northmead. 2 In proceedings 3284/94 Artin Assadourian and Malaka Assadourian sought a declaration that Nauvart Assadourian held that property as trustee for them. In this judgment I will refer to the parties by their first names in an attempt at clarity. In those proceedings Nauvart cross-claimed for possession of the property and removal of a caveat. The proceedings were listed on 27 February 1997 and adjourned until the next day, when the matter was compromised pursuant to the terms of a deed of release and consent orders. The deed of release cited the proceedings in the court and the agreement to settle in accordance with the orders annexed to the deed and the terms of the deed. Clause 1, 2, 4, and 7 of the deed were as follows: 1. In consideration for: (a) the making of orders by consent by the Supreme Court today in the form annexed hereto and marked "A"; and (b) the vacation of the property by Artin Assadour Assadourian and Malaka Assadourian by 1 February 1998; and