Markson v Cutler & anor [2007] NSWSC 1515

New South Wales Supreme Court

CITATION : Markson v Cutler & anor [2007] NSWSC 1515

HEARING DATE(S) : 17-21 December 2007 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 21 December 2007

DECISION : A deposit less than 10% was not accepted. Agent did not have authority to accept 5% deposit. Court should not readily decline to act on unchallenged evidence. Failure to afford party in default opportunity to rectify is not unconscionable. Deposit to be returned. Agent failed to communicate relevant information and disobeyed instructions. Agent to indemnify purchaser in respect of costs.

CATCHWORDS : CONVEYANCING – deposit – whether deposit less than 10% accepted. - AGENCY – real estate agent – whether authorised to accept less than 10% deposit. - AGENCY – duties – real estate agent – to communicate relevant information to principal – to assiduously endeavour to elicit best offer – to obey instructions. - EVIDENCE – cross-examination – significance of absence of cross-examination in case conducted on affidavit evidence. - EQUITY – estoppel – promissory estoppel – whether failure to afford party in default an opportunity to rectify breach is unconscionable – whether loss of such opportunity is relevant detriment. - EQUITY – relief against forfeiture – deposit – Conveyancing Act s 55(2A). - COSTS – where defendant succeeds on plaintiffs' claim – where cross-defendant responsible for litigation – whether cross-defendant should indemnify plaintiff.

(NSW) Civil Procedure Act 2005, s 98 LEGISLATION CITED : (NSW) Conveyancing Act 1919, ss 54A, 55(2A) (NSW) Uniform Civil Procedure Rules, Rule 42.1