Wise v Imports [2001] NSWSC 929

New South Wales Supreme Court

CITATION : Wise v Imports [2001] NSWSC 929 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3614 of 2000 HEARING DATE(S) : 19/10/01 JUDGMENT DATE : 19 October 2001

PARTIES : Wise Property Group Investments Pty Limited v Imports International Pty Limited JUDGMENT OF : Master Macready at 1

COUNSEL : Mr R.N. Gye for plaintiff SOLICITORS : Mr T. Orlizki of Selby Anderson for plaintiff Proctor Phair Lawyers for defendant CATCHWORDS : Corporations Law. Application to set aside statutory demand. Demand set aside. No matter of principle. DECISION : Paragraphs 16 and 18

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1 MASTER: This is an application under s 459G to set aside a statutory demand. The statutory demand describes the debt which is sought to be recovered in these terms: "Amount payable to the creditor pursuant to special condition 12(e) of the contract for sale of land between the creditor being the vendor and the company being the purchaser for the property at 1/132 Victoria Road, Bellevue Hill, dated 21 February 2000."

2 The amount of the debt is $85,625. The parties were respectively the purchaser and the vendor of property which is referred to in the description in the details I have just quoted. The property was the subject of a contract for sale dated 21 February 2000 at a sale price of $1,712,500. 3 The contract contained the usual conditions which on the front page defined the price, the deposit and the balance. The deposit was shown as $85,625 and in the area in brackets the 10 percent has been crossed out and 5 percent inserted. In Clause 9 of the standard conditions, in 9.1 there is provision that if the purchaser does not comply it "may keep or recover the deposit (to a maximum of 10 percent of the price)". 4 There is also a special condition 12 Deposit, and sub-clause (e) of that is in the following terms: "Notwithstanding the provisions contained herein, the deposit shall be reduced to 5% of the purchase price, and in the event of the Contract being terminated in circumstances where the deposit, if forfeited to the vendor, the vendor be entitled to recover from the Purchaser any outstanding deposit as liquidated."