New South Wales Supreme Court CITATION : Australian Agricultural Properties Pty Limited v Hraiki & Anor [2005] NSWSC 779 HEARING DATE(S) : 1 August 2005 JUDGMENT DATE : 9 August 2005 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Malpass at 1 DECISION : The summons is dismissed; the exhibits may be returned; the plaintiff is to pay the costs of the summons; the basis upon which those costs are payable is reserved. CATCHWORDS : The plaintiff was found to have elected to affirm the contract - finding of fact - no error. Australian Agricultural Properties Pty Limited (Plaintiff) PARTIES : George Michel Hraiki (First Defendant) Sylvia Hraiki (Second Defendant) FILE NUMBER(S) : SC 12009/05 Mr T Hall (Plaintiff) COUNSEL : Mr J Sheller (Defendants) Tzovaras Legal (Plaintiff) SOLICITORS : Southern Cross Lawyers (Defendants) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 4261/04 LOWER COURT JUDICIAL OFFICER : Dillon LCM - 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Associate Justice Malpass 9 August 2005 12009 of 2005 Australian Agricultural Properties Pty Limited v George Michel Hraiki & Anor JUDGMENT 1 His Honour: On 24 November 2003, the parties entered into a contract for the sale of land. The plaintiff was the vendor. The defendants were the purchasers. 2 On 1 March 2004, the plaintiff appointed 15 March 2004 as the date for settlement. Settlement did not take place on that day. On 17 March 2004, the plaintiff issued a notice to complete. It was common ground that the notice to complete was not received by the solicitors for the defendants until 18 March 2004. As a consequence, there had been a failure to allow the requisite 14 days (special condition 36(c)(ii) of the contract). 3 Settlement did not take place by the time specified in the notice (on or before 5pm on 31 March 2004). On 1 April 2004, the plaintiff gave notice of termination. The defendants treated the purported termination as a wrongful repudiation and brought the contract to an end. The plaintiff did not refund the deposit. It resold the land at a loss. 4 The defendants brought proceedings in the Local Court. The claim was for the amount of the deposit plus legal costs. The defendant brought a cross-claim. It sought to recover the loss on the resale plus other costs. 5 The proceedings were heard and determined by Dillon LCM. 6 The defendants were the successful parties. A judgment was entered in their favour in respect of both their claim and the cross-claim. 7 On 16 May 2005, the plaintiff filed a summons in this court. It purports to bring an appeal against the decision of the Magistrate. 8 It is alleged that there has been error in point of law by the Magistrate. The plaintiff bears the onus of satisfying the court that there was such error and that it justifies the disturbing of the decision. 9 The appeal was heard on 1 August 2005. The grounds of appeal alleged a number of errors. What was argued on the appeal fell within the compass of ground 2 as set forth in the summons. 10 The Magistrate found that the giving of the notice to complete constituted an election to affirm the contract. The plaintiff contends that he erred in making such finding and that the error was one of law. 11 The case for the plaintiff was that it had reserved its right to terminate by reason of non-completion on 15 March 2004 and that in giving the notice to complete it merely affirmed the contract until 31 March 2004. 12 There is dispute between the parties as to whether or not what is now being argued by the plaintiff gave rise to error in point of law. 13 There is common ground between the parties that the Magistrate applied the correct legal principles. 14 In my view, the finding made by the Magistrate as to the election made by the plaintiff was a finding of fact. 15 Even if a different view were to be taken on that matter, it seems to me that this appeal must still fail. I am not satisfied that any error was made by the Magistrate in finding that the plaintiff had elected to affirm the contract. 16 There is no express material that identifies a purported reservation of an earlier right to terminate. 17 The plaintiff has looked to Exhibits 1 and 2 (the notice to complete and covering letter and the notice of termination) as giving support for its argument. In my view, the content of that material does not give support to the contention advanced by the plaintiff. 18 On one view, the covering letter has the potential to create confusion and contains material that stands in conflict with the enclosed notice to complete (it purported to stress that completion "must take place prior to Wednesday 31 March 2004"). 19 The appeal fails. The summons is dismissed. The exhibits may be returned. The defendants have asked that questions of costs be reserved. The plaintiff contends that costs should follow the event. 20 It seems to me that the court should order that the plaintiff pay the costs of the summons and that the basis upon which those costs are payable should be reserved. Accordingly, I so order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.