BAKHOS v FENNER & ANOR [2007] NSWSC 641

New South Wales Supreme Court

CITATION : BAKHOS v FENNER & ANOR [2007] NSWSC 641

HEARING DATE(S) : 20/06/2007

JUDGMENT DATE : 20 June 2007

JURISDICTION : EQUITY

JUDGMENT OF : Bryson AJ at 1

DECISION : (1) Upon the statement of claim I give judgment for the defendants with costs; (2) On the amended first cross-claim I make the declaration in claim 1, the declarations in claims 2, 3 and 4. I make the order in claim 5 and the declaration in claim 6. On claim 7 I give judgment for the defendants for $9,550; (3) I order that the plaintiff/cross-defendant pay the defendants'/cross-claimants' costs of the cross-claim; (4) I reserve liberty to apply for further relief in respect of caveat AC136900.

CATCHWORDS : CONTRACT FOR SALE OF LAND - vendor and purchaser - fire damage - purchaser purportedly rescinded under s 66L of the Conveyancing Act 1919 after fire damage - vendors treated purported rescission as repudiation and accepted repudiation so terminating contract - on the facts, found that the damage was minor and the land was not substantially damaged as defined in s 66J of the Act, hence acceptance of repudiation was effective - deposit forfeited, caveat removed.

LEGISLATION CITED : Conveyancing Act 1919 Uniform Civil Procedure Rules 2005

Tony Bakhos - Pltf PARTIES : Regula Fenner - 1st Dft Rolf Maximillian Fenner - 2nd Dft

FILE NUMBER(S) : SC 2703 of 2006

COUNSEL : N/A - Pltf Mr A. Fernon - Dfts

SOLICITORS : Crane Butcher McKinnon

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON AJ

WEDNESDAY 20 JUNE 2007

2703/06 - TONY BAKHOS v REGULA FENNER AND ROLF MAXIMILLIAN FENNER JUDGMENT 1 HIS HONOUR: When these proceedings were called for hearing today Mr Fernon of counsel appeared for the defendants and there was no appearance for the plaintiff, Mr Tony Bakhos. The plaintiff's name was called outside the Court three times at two minutes past ten however there was still no appearance for the plaintiff. 2 The proceedings were commenced by Summons on 11 May 2006. Mr Bakhos was then represented by Mr Sid Hawach, solicitor of Parramatta, who filed the Summons on his behalf. On the following day, 12 May 2006, the plaintiff obtained a number of orders for the further conduct of the proceedings including an order extending his caveat until further order. The Summons and the Application for Extension of Caveat were supported by the plaintiff's affidavit of 10 May 2006. The order for the extension of the caveat was taken out in the registry of this Court on 12 May 2006 and it still has effect. 3 I cannot see from the file that the plaintiff has taken any significant steps in the conduct of the proceedings since then. He has not been represented at any of the six interlocutory and directions hearings, although for some of them a note says that the proceedings were mentioned for the plaintiff by the defendants, suggesting some arrangement having been made between the plaintiff and the defendants at some time. 4 The plaintiff was not represented when the proceedings came before Registrar Walton on 14 March 2007. On that date, the Registrar fixed the hearing of the proceedings to commence before me today. 5 The plaintiff's solicitor filed a Notice of Ceasing to Act as the plaintiff's solicitor on 19 March 2007. I have today read the affidavit of Vincent Leonard Butcher, solicitor, of 20 June 2007 and the affidavit of Maree Elizabeth Booth, solicitor, of 20 June 2007. These affidavits show that the defendants' solicitors have not been given a copy of the Notice of Ceasing to Act or been told about it. The Registrar sent the plaintiff a tax invoice for an allocation fee dated 12 April 2007 and the tax invoice, which remains unpaid, says, among other things, that the hearing date had been fixed and the proceedings were to be heard today. 6 I felt some concern last week about whether there would be an appearance for the plaintiff at the hearing and so caused my Associate to write a letter to the plaintiff at the address given for him in his affidavit and in the Notice of Ceasing to Act indicating that the case was to be heard today. 7 The affidavits of Mr Butcher and Ms Booth, both of 20 June 2007, show that the solicitors representing the defendants have kept up communication with Mr Hawach concerning preparations for the hearing and advised him of the appointment of the hearing date but he has not participated in preparations for the hearing in any appropriate way. 8 Indeed, quite remarkably, after he had filed the Notice of Ceasing to Act he continued to take part in communications with the defendants' solicitor in a way which did not suggest that he had in fact withdrawn from the proceedings. 9 I have regard to r 29.7 of the Uniform Civil Procedure Rules 2005 which deals with the procedure to be followed if a party is absent. I have been told by counsel that the defendants wish to press on with the hearing, including the hearing of claims in the cross-claim. I note that the plaintiff did not file a defence to the cross-claim. 10 It is not sufficient simply to dismiss proceedings on the plaintiff's claim; there is a need to establish entitlement to recover or retain the deposit, the subject on which each side seeks declaratory relief. It does not seem to me to be appropriate to leave the deposit open to any further debate. 11 The defendants are subject to a caveat which has been extended until further order and I should now give attention to their claim that the caveat should be removed. I propose to take the course indicated in rule 29.7(2)(a) and proceed with the trial generally.