CHARLES INVESTMENTS P/L v KARAKIS [2002] NSWSC 1213

New South Wales Supreme Court

CITATION : CHARLES INVESTMENTS P/L v KARAKIS [2002] NSWSC 1213 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 1838 of 2002 HEARING DATE(S) : 12/12/02 JUDGMENT DATE : 18 December 2002

PARTIES : Charles Investments Pty Limited - Plaintiff Ertan Karakis - Defendant JUDGMENT OF : Bryson J at 1

COUNSEL : M. Hadley - Plaintiff G. Foster - Defendant SOLICITORS : Noyce Legal - Plaintiff Phillip A Wilkins & Associates - Defendant CATCHWORDS : VENDOR and PURCHASER - Notice to Complete time of the essence and Termination - V and P acting for selves wihtout solicitors - V sent home - made Notice to Complete after repeated failures by P to meet informally agreed completion dates - Notice held to be sufficiently clear in circumstances - issue of fact about alleged further oral agreement to extend time decided in favour of V - found there was no further oral agreement - Specific Performance claim by P refused. Balog v. Crestani (1975) 132 CLR 289 CASES CITED : O'Brien v. Dawson (1941) 41 SR NSW 295 Laurinda Pty Ltd v. Capalaba Park Shopping Centre (1989) 166 CLR 623 Forslind v. Bechely-Crundall [1922] SC (HL) 173 DECISION : (1) Give judgment for the defendant with costs.; (2) Order pursuant to s.74MA of the Real Property Act 1900 that Caveat 6360332 be withdrawn on 20 December 2002.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

WEDNESDAY 18 DECEMBER 2002

1838/02 Charles Investments Pty Ltd v. Ertan Karakis

JUDGMENT 1 HIS HONOUR: The Plaintiff (the purchaser) sues for specific performance of two contracts dated 7 November 1999 for sale of adjacent parcels of land in O'Brien Street, Mt Druitt. The parcels are Lots 126 and 127 DP 1218 and according to the plan each has a frontage of 100 feet and depth of 264 feet 3 inches. The contracts were on the 1996 edition of the Standard Form, but with modifications. The price of each lot was $150,000, and the deposit of $15,000 for each contract was paid to the Defendant (the Vendor). Neither party had a solicitor to conduct the sale. There was no agent. The affairs of the purchaser were conducted by Mr Richard Charles Mochalski, its director, who was an experienced land developer. Mr Mochalski made two affidavits which formed the plaintiff's evidence; he died on 27 September 2002 and hence was not available to be cross-examined. His evidence about a number of facts was disputed. In assessing the weight of his evidence it is important to keep in view the circumstance that no opportunity to challenge it by cross-examination was available to the vendor. 2 At the hearing the plaintiff offered by its counsel to perform the contract within one week of the court's order. Evidence showed that the plaintiff now has the resources to do this. 3 In each contract the Standard Form provided on the first page for a completion date and in that space was written "See Special Condition 14". 4 Printed Condition 15 is as follows: Completion date The parties must complete by the completion date and, if they do not, a party can serve a notice to complete if that party is otherwise entitled to do so. 5 The Special Conditions include the following: Special Condition 1: