Lucantonio v Ciofuli [2002] NSWSC 509

Reported Decision : (2003) NSW ConvR 56-031

New South Wales Supreme Court

CITATION : Lucantonio v Ciofuli [2002] NSWSC 509 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 6073/01 HEARING DATE(S) : 31 May and 4 June 2002 JUDGMENT DATE : 7 June 2002

PARTIES : Dean Lucantonio and Paulette Lucantonio (P) Lucia Ciofuli (D) JUDGMENT OF : Austin J

COUNSEL : Mr D L Warren (P) Mr J T Svehla (D) SOLICITORS : Otto Stichter & Associates (P) Christopher Balomatis (D) CATCHWORDS : REAL PROPERTY - caveat to protect purchasers' interest - application to extend - whether serious question as to validity of termination - balance of convenience LEGISLATION CITED : Environmental Planning & Assesment Act 1979 (NSW) s 96 Real Property Act 1900 (NSW) s 57(2)(b) Batey v Gifford (1997) 42 NSWLR 710 Dainford v Lam (1993) 3 NSWLR 25 Frankcombe v Foster Investments Pty Ltd (1978) 2 NSWLR 41 Lawrence v Appleby (2002) NSW Conv R 55-993 CASES CITED : Martyn v Glennan (1979) 2 NSWLR 234, 239 McNally v Waitzer (1981) 1 NSWLR 294 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Tambel v Field (1982) NSWR 55-077 Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 DECISION : Application to extend caveat dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

FRIDAY 7 JUNE 2002

6073/01 DEAN LUCANTONIO AND PAULETTE LUCANTONIO V LUCIA CIOFULI JUDGMENT 1 HIS HONOUR: This is a dispute relating to the sale by the defendant to the plaintiffs of a property at 43 Majors Bay Road, Concord ("the Property"). By way of principal relief in the proceeding, the plaintiffs seek a declaration that the contract remains valid and binding, an order for specific performance with compensation, and damages under the Fair Trading Act. The plaintiffs have lodged a caveat over the Property to protect their interest as purchasers under the contract, but a lapsing notice has issued. They seek an order extending the caveat until further order of the Court. The present judgment relates to that application. 2 The contract for sale between the plaintiffs and the defendant was entered into on 3 November 2001, as a result of an auction of the Property, for a purchase price of $2.2 million. The deposit, paid on that day, was $220,000. Completion was to take place on 16 January 2002. The printed terms of the contract were the 2000 edition of the contract for the sale of land produced by the Law Society of New South Wales and the Real State Institute of New South Wales. Amongst the printed terms were the following: