Wood v Lyons [2009] NSWSC 419

New South Wales Supreme Court

CITATION : Wood v Lyons [2009] NSWSC 419

HEARING DATE(S) : 22 April 2009

JUDGMENT DATE : 22 May 2009

JUDGMENT OF : Smart AJ

Contract for sale and purchase of property validly terminated by plaintiffs. DECISION : Defendant ordered to authorise and direct agent to release deposit of $56,500.00 to plaintiffs. Judgment for the plaintiffs for $65,256.00.

CATCHWORDS : Vendor and purchaser - Requisitions - Notice to Complete making time of essence - Contract of sale and purchase of residential property terminated for breach - release of deposit paid - Damages claimed and assessed

Environmental Planning and Assessment Act 1997 LEGISLATION CITED : Local Government Act 1919 Local Government Act 1993

CATEGORY : Principal judgment

Balog v Crestani (1975) 132 CLR 289 CASES CITED : Carpenter v McGrath (1996) 40 NSWLR 39 Crowe v Rindock Pty Ltd [2005] NSWSC 375 re Ford & Hill (1879) 10 Ch D 365

TEXTS CITED : Megarry and Wade (1984) The Law of Property

PARTIES : Donald Victor Wood & June Mary Wood (Plaintiffs) Sean Lyons (Defendant)

FILE NUMBER(S) : SC 2122/08

COUNSEL : SB Loughnan (Plaintiffs) JJ Castrission (Defendant)

SOLICITORS : TH Walker (Plaintiffs) JJCastrission (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Smart AJ

Friday 22 May 2009

2122/08 Donald Victor Wood & June Mary Wood v Sean Lyons JUDGMENT 1 On 26 September 2007 Mr and Mrs Wood entered into a contract for the sale of their home at Killarney Heights to Sean Lyons as purchaser for $1,130,000 with a completion date of 7 November 2007. Time was not of the essence. Clause 15 of the General Conditions of Contract provided that the parties must complete by the completion date and if they did not, a party can serve a notice to complete if that party is otherwise entitled to do so. Special Condition 31.1 provided that for the purpose of Clause 15 the parties acknowledge that fourteen days shall be sufficient notice in any Notice to Complete issued in order to make time of the essence. The purchaser did not and could not comply with the Notice to Complete and the vendors thereafter purported to terminate the contract. The purchaser had been unable to provide or raise the funds necessary to complete the purchase. The vendors sue for the deposit and damages. In his cross-claim the purchaser asserts that the vendors, by serving their Notice to Complete, wrongfully repudiated the contract and claims return of that part of the deposit which he paid to a real estate agent as stakeholder. 2 Clause 32 of the Special Conditions of Contract provides: "The vendor shall accept an initial deposit equal to 5% of the purchase price providing that the balance of the 10% deposit is paid upon completion or upon termination whichever in fact occurs." 3 In about June 2007 the vendors offered their property for sale through Raine & Horne, Forrestville. The purchaser inspected the property on a number of occasions before exchange of contracts. On one occasion he inspected the property with an architect. 4 By letter dated 4 September 2007, the solicitor for the vendors applied to Warringah Shire Council for Building Certificate under s 149B of the Environmental Planning and Assessment Act 1979. This usually occurs when the property owner has carried out works on his property. On 25 September 2007 the Council carried out a statutory inspection. By letter of 26 September the Council wrote to the vendors' solicitor: "Prior to the determination of the application you are required to submit the following information or complete the works outlined below: