Nwai Pty Ltd v Johnston & Ors [2005] NSWSC 1368

New South Wales Supreme Court

CITATION : Nwai Pty Ltd v Johnston & Ors [2005] NSWSC 1368

HEARING DATE(S) : 29 July 2005

JUDGMENT DATE : 29 July 2005

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

DECISION : Judgment for the plaintiff.

CATCHWORDS : CONVEYANCING - vendor and purchaser - contract for sale of land - notice to complete given and contract terminated - notice valid despite an obligation of the vendor outstanding that was required to be cured before completion - plaintiff entitled to forfeit deposit - no relief under s55(2A)

LEGISLATION CITED : Conveyancing Act 1919 s55(2A)

Alarm Facilities Pty Ltd v Jackson Constructions Pty Ltd (NSW Court of Appeal, 10 May 1977 unreported) CASES CITED : Coast Securities No 9 Pty Ltd v Alabac Pty Ltd [1984] 1 QdR 25 McNally v Waitzer [1981] 1 NSWLR 294

Nwai Pty Ltd (Plaintiff) Paul Ronald Johnston (First Defendant) PARTIES : Elene Johnston (Second Defendant)

FILE NUMBER(S) : SC 1678 of 2005

Mr R Scruby (Plaintiff) COUNSEL : Mr J E Thomson (Defendants)

O'Sullivan Saddington (Plaintiff) SOLICITORS : Mullane & Lindsay (Defendants)

LOWER COURT JURISDICTION :

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

FRIDAY 29 JULY 2005

1678/05 - NWAI PTY LTD v PAUL RONALD JOHNSTON & ORS

JUDGMENT

1 HIS HONOUR: In this matter the plaintiff seeks to recover the amount of a deposit payable by the purchasers under contract for the sale and purchase of a property being Unit 902, The York, 61 Shortland Esplanade, Newcastle. The contract is dated 7 June 2002. The purchase price payable under the contract was $1,475,000. The contract was a contract for purchase off the plan and when entered into the expected date for registration of the strata plan was 30 March 2004. The contract had a provision under which the vendor was entitled to extend that date if it gave notice six months prior to the original registration date. It gave such notice extending the registration date to 30 September 2004.