Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674

New South Wales Supreme Court

CITATION : Macquarie Developments Pty Ltd & Anor v Forrester & Anor [2005] NSWSC 674

HEARING DATE(S) : 30 June and 1 July 2005

JUDGMENT DATE : 8 July 2005

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Judgment for the Defendants.

CATCHWORDS : VENDOR AND PURCHASER - ORAL AGREEMENT - NON-REFUNDABLE DEPOSIT - Proposed agreement for sale of shares - whether vendors and purchasers orally agreed that advance payment of part deposit would be non-refundable if sale agreement did not proceed - question of fact - no question of principle.

Macquarie Developments Pty Ltd - First-named Plaintiff Activerain Pty Ltd - Second-named Plaintiff PARTIES : Bradley Keith Forrester - First-named Defendant Gregory Mark Forrester - Second-named Defendant

FILE NUMBER(S) : SC 4057/02

D.L. Warren - Plaintiffs COUNSEL : G.A. Sirtes - Defendants

Simone Legal - Plaintiffs SOLICITORS : Swaab Attorneys - Defendants

LOWER COURT JURISDICTION :

Introduction

1 The Plaintiffs sue the Defendants for repayment of the sum of $150,000 which they say was part payment of a deposit pursuant to an agreement for the purchase of shares which did not proceed because a condition of the agreement was not met. 2 The Defendants say that the payment of $150,000 was agreed to be non-refundable if the share sale agreement did not proceed and that it was made as an inducement to the Defendants to continue dealing with the Plaintiffs after a previous transaction had come to nothing. 3 The agreement for the purchase of the shares was not reduced to writing in final form and executed by the parties. The agreement as to part payment of the deposit was made in one or two meetings, depending upon whether one accepts the Plaintiffs' version of events or the Defendants' version. No contemporaneous note of the meeting or meetings was made. The Plaintiffs' version of the critical discussions differs radically and irreconcilably from the Defendants' version. The resolution of the case depends entirely on the parties' credit and accuracy of recollection.