Foxman v Mitzev [2006] NSWSC 1404

New South Wales Supreme Court

CITATION : Foxman v Mitzev [2006] NSWSC 1404 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 8 December 2006

JUDGMENT DATE : 8 December 2006

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Vendor's lien declared.

CATCHWORDS : CONVEYANCING [114] – Relationship of vendor and purchaser – Position of parties after completion – Vendor's lien – Generally.

Aronis v Hallett Brick Industries Ltd [1999] SASC 92 CASES CITED : Davies v Littlejohn (1923) 34 CLR 174 Hewett v Court (1983) 149 CLR 639 Reliance Finance Corporation Pty Ltd v Heid [1982] 1 NSWLR 466

PARTIES : Marsha Foxman (P) Assen Atanasov Mitzev (D)

FILE NUMBER(S) : SC 2280/06

COUNSEL : L S Einstein (P) R J Colquohon (D)

SOLICITORS : Coustas & Co (P) Lynden E Hopper & Co (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 8 DECEMBER 2006

2280/06 MARSHA FOXMAN v ASSEN ATANASOV MITZEV JUDGMENT 1 HIS HONOUR: These are proceedings for the enforcement of a vendor's lien for unpaid purchase moneys under a contract for the sale of land. 2 In early 2002, Elimajo Pty Ltd ("Elimajo") was the trustee of the Wajnstajn Family Trust and was as such the registered proprietor of a substantial property at 47 Ridge Avenue Jindabyne ("the property.") 3 Subsequently, Elimajo ceased to be the trustee of the Wajnsztajn family trust and on 20 March 2006, by deed of appointment subsequently registered, the plaintiff was appointed as the new trustee of the trust. No point has been taken in these proceedings about the entitlement of the plaintiff to pursue the proceedings on behalf of the trust. 4 On an unspecified date before May 2002, Elimajo advertised the property for sale. The advertisement stated, "Total Price $900,000 Accepting $450,000 Credex Deposit." On 1 May 2002, Elimajo entered into a contract for the sale of the property to the defendant ("the contract"). The price was stated on the front page of the contract to be $900,000, payable as to $90,000 by way of a deposit, with the balance on completion. Special condition 8 of the contract provided that the purchase price might be paid as follows. " Deposit: Credex dollars to the value of $90,000.00 Balance payable on completion: (i) Cash or bank cheque in the sum of $380,000.00 (ii) Credex dollars to the value of $430,000.00." 5 Completion took place on 22 May 2002. There is no doubt that the total amount to be paid by Credex dollars was reduced by agreement from $520,000 to $510,000. This was the obligation that was met on completion. On completion, at Elimajo's direction, the portion of the purchase price payable in Credex dollars was paid to Foxel Pty Limited ("Foxel"), of which Mr Wajnsztajn was the sole director. 6 Foxel was a member of the Credex scheme. Neither Elimajo nor the defendant was at the time of contract or at the time of settlement a member of that scheme, which was a scheme permitting members to deal by barter through the medium of "Credex dollars". 7 Credex National Australian Trade Exchange Limited ("CNATE") was a company limited by guarantee. Its memorandum and articles provided that the central right of "B" class shareholders was to engage in the trading scheme by trading with other members and with the manager. The Credex rules of trading contained the following provisions: "1.1 The purpose of these Rules is to regulate, facilitate and administer the trading by Members between themselves and with the Manager of the Exchange and to govern the proce-dures [sic] to be adopted by the Manager to manage the Exchange and the accounts of Members.