Dowidar & Ors v Bektas & Ors [2008] NSWSC 1380

New South Wales Supreme Court

CITATION : Dowidar & Ors v Bektas & Ors [2008] NSWSC 1380

HEARING DATE(S) : 11-12 December 2008

JUDGMENT DATE : 19 December 2008

JURISDICTION : Equity

JUDGMENT OF : Bryson AJ at 1

(1) Upon the plaintiffs' claims give judgment for the defendants. (2) Upon the cross-claim: (i) declare that the cross claimants are entitled to repayment of their respective deposits, together with any interest accrued thereon; (ii) order that the fourth cross defendant Michael McEvoy pay: DECISION : (a) the deposit on the contract for sale of land dated 20 July 2006 and any interest thereon to Raffetin Bektas and Sahila Bektas the first and second cross claimants; (b) the deposit on the contract of sale of business dated 20 July 2006 and any interest thereon to the third cross claimant Toruns Investments Pty Limited. (3) Order that the plaintiffs pay the first, second and third defendants' costs of proceedings on the plaintiffs' claim. (4) Order that the first and second cross defendants pay the cross claimants' costs of proceedings on their cross-claim. (5) Order that the fourth defendant McEvoy pay and bear his own costs of proceedings upon the plaintiffs' claim and upon the cross claim.

CATCHWORDS : VENDOR and PURCHASER – contract made settlement date depend on purchaser obtaining licence from DOCS for child care centre – purchaser's director responsible for child care centre received psychiatric treatment but this was not disclosed with application – disclosed later when (1) referee withdrew reference (2) director's daughter made adverse representations to DOCS (3) purchaser's solicitor sent DOCS a report from psychiatrist. Licence refused. In purchasers' perception, it was in their interest that licence be refused and completion not occur. Consideration of interaction of obligation in Butts v O'Dwyer (1952) 87 CLR 267 to take reasonable and proper action to obtain a licence with obligation of disclosure to licensing authority – HELD – the information was properly disclosed to DOCS and there was no breach of implied obligation. Deposit recoverable. Consideration of operation of non-standard Special Condition in purchase contract. CHILDREN and YOUNG PERSONS – application to DOCS for licence for child care centre – consideration of obligations of disclosure, relevant discretionary considerations, fit and proper person.