Ollis v Charlier [2006] NSWSC 330

New South Wales Supreme Court

CITATION : Ollis v Charlier [2006] NSWSC 330

HEARING DATE(S) : 31 March 2006

JUDGMENT DATE : 31 March 2006

JURISDICTION : Equity Division

JUDGMENT OF : Windeyer J at 1

DECISION : Order for forfeiture of deposit

CATCHWORDS : VENDOR AND PURCHASER - termination of contract through default of purchaser - order for forfeiture of the deposit

Victor Ollis (Plaintiff/Cross defendant) Heather Eileen Charlier (First defendant/first cross claimant) PARTIES : Roslyn Heywood (Second defendant/second cross claimant) John Charlier (Third defendant/third cross claimant) Russell Heywood (Fourth defendant/fourth cross claimant) Mavis Heywood (Fifth defendant/fifth cross claimant)

FILE NUMBER(S) : SC 6332 of 2004

No appearance (Plaintiff/Cross-defendant) COUNSEL : Mr S T Miles (First defendant/first cross-claimant) No appearance (second to fifth defendants/second to fifth cross-claimants)

No appearance(Plaintiff/Cross-defendant) SOLICITORS : Donovan Oates and Hannaford (First Defendant/first Cross-claimant) No appearance (second to fifth defendants/second to fifth cross-claimants)

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

WINDEYER J

FRIDAY 31 MARCH 2006

6332/04 VICTOR OLLIS v HEATHER EILEEN CHARLIER

JUDGMENT

1 HIS HONOUR: In this matter the cross-claimants proceed on a cross-claim filed on 25 October 2005. The cross-defendant has not appeared. He was the plaintiff in the proceedings as originally commenced which has been dismissed this morning, as there was no appearance by or for him. 2 The cross-claimants claim the deposit paid under two separate contracts in respect of which the first and second cross-claimants were registered proprietors and in respect of one of the second, all of the cross-claimants were registered proprietors. The evidence shows that the cross-claimants terminated both contracts as a result of the failure by the purchaser to settle as required by a notice to complete. The contracts were entered into on 17 September 2003. 3 It is clear there was considerable delay but, in any event, the cross-claimants served notices to complete on 31 March 2004, in respect of one property, and on 1 April 2004, in respect of the other property, in each case requiring completion on 16 April 2004. The purchaser did not attend at the time fixed for settlement. There seems to have been some question about the settlement figures and perhaps some question as to delay in advice, as to the cheques required for settlement. Neither of those matters is shown to have justified a failure to complete. 4 What the cross-claimants are seeking is the forfeiture of the deposits paid, in accordance with the terms of the contract. There is no additional claim for damages. There might have been an argument that termination by notice dated on the same date as the date fixed for completion was premature, but the notice of termination was, in fact, given after the purchaser failed to attend settlement at the time fixed for settlement, and, in any event, by that time, a time far more than was reasonable had been given for the purchaser to settle. 5 In the circumstances, the cross-claimants are entitled to orders as to forfeiture of the deposits. The deposits were paid to an agent, Messrs Porters for Property, Gunnedah. The agents are not parties, but the court would imagine that once a declaration is made that the cross-claimants are entitled to the deposits, then they will pay. I will, however, make an order that the cross-defendant authorise the agents to pay the deposits which they hold to the cross-claimants, but, in my view, that should not be necessary to enable the agents to pay. 6 I make a declaration and orders in accordance with the document headed "draft orders" initialled by me and dated today. **********