Romanous v Saleh [2008] NSWSC 656

New South Wales Supreme Court

CITATION : Romanous v Saleh [2008] NSWSC 656

HEARING DATE(S) : 17/06/08

JUDGMENT DATE : 17 June 2008

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 17 June 2008

DECISION : See paras 26, 27, 29, 30 and 31 of judgment.

CATCHWORDS : INJUNCTION – interlocutory injunction – contract for sale of land – serious question whether stakeholder is to hold deposit as trustee – plaintiffs tardy and deposit protected by charge – injunction refused - PROCEDURE – summary judgment – contract for sale of land – sum less than purchase price paid before completion – contract authorises part payments before completion – triable issue that vendors are entitled to retain part payment

Potters (a firm) v Loppert [1973] Ch 399 CASES CITED : Hastingwood Property Ltd v Saunders Bearman Anselm (a firm) [1991] Ch 114 Manzanilla Ltd v Corton Property & Investments Ltd (Court of Appeal, Millett LJ, 13 November 1996 unreported at 11) Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567

Harris Romanous & Anor PARTIES : v Michael Saleh & Anor

FILE NUMBER(S) : SC 4516/06

COUNSEL : Plaintiffs: F Kalyk Defendants: D Rayment

SOLICITORS : Plaintiffs: Thurlow Fisher Lawyers & Consultants Defendants: Woods & Day Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

WHITE J

Tuesday, 17 June 2008

4516/06 Harris Romanous & Anor v Michael Saleh & Anor JUDGMENT 1 HIS HONOUR: This application is partly for summary judgment and partly for interlocutory relief to preserve the plaintiffs' claimed entitlement to recover a deposit of $67,000 paid under a contract for the sale of land and a sum of $200,000. The plaintiffs claim that they lent $200,000 to the defendants pursuant to a short-term loan in July 2004 and seek repayment of the loan. The defendants contend that the moneys were paid under the contract for the sale of land. The plaintiffs, on this application, say that even if the defendants' contention is correct, they are entitled to recover that sum. 2 The relief sought is as follows: " 1. An order pursuant to UCPR r.13.1 that summary judgment be entered in favour of the Plaintiffs in the amount of $200,000 together with interest thereon at the rate of 6% from 27 July 2004 until 30 September 2004 and thereafter at the prescribed rate, pursuant to s. 100 of the Civil Procedure Act 2005. 2. An order that within 7 days the Defendants pay the deposit of $67,000 paid by the Plaintiffs under the contract for sale of land dated 13 May 2004 into a separate bank account in the names of the parties, and that such amount and interest therein be held in that account as stakeholder under the contract pending the determination of these proceedings or until further order or agreement between the parties. 3. That in the alternative to order 1 and in addition to order 2, an order that within 7 days the further amount of $200,000 be paid into the account referred to in order 2, and that such amount and interest thereon be held in that account as stakeholder under the contract pending the determination of these proceedings or until further order or agreement between the parties. 4. A direction that within 10 days the Defendants provide to the Plaintiffs a copy of such documents as are executed by the Defendants in the establishment of the bank account referred to in these orders and evidence from such bank as to payment of moneys as ordered. " 3 The relief was claimed in a notice of motion filed on 30 April 2008. These proceedings were commenced on 30 August 2006 and relate to events occurring in 2004. To say that the application for summary judgment and interlocutory relief is late is a considerable understatement. 4 The contracts for the sale of land were exchanged on 13 May 2004. The purchase price was $670,000. The contract was for the sale of land in Kissing Point Road, Dundas. Completion was due on 25 June 2004. The contract was not completed on that day. 5 The contract states that it was entered into without the intervention of an agent. Notwithstanding that, the front page of the contract stated that the depositholder would be the vendors' agent. It appears there was no such person. Special condition 52 is entitled "Release of Deposit" and provided: " Upon exchange of Agreements or thereafter and if required by the Vendor the Purchaser shall permit the release of the whole or part of the deposit moneys paid herein to the Vendor, such moneys to be applied solely for the deposit on a property being purchased by the Vendor or the payment of stamp duty in relation to same. "