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: 1) The balustrade to the internal staircase is to be modified to comply with Part 3.9.2 of the Building Code of Australia. 2) The stairs and associated handrail located adjacent the southern boundary that provide access from the pool area to the side yard are to be modified so as to comply with Parts 3.9.1 and 3.9.2 of the Building Code of Australia. 3) A handrail is to be installed along the eastern elevation of the paved area located adjacent the laundry where the clothes line is and this paved area is more than 1m above ground level below. 4) Part of the block wall located on the southern side of the pool that forms the supports for the pool safety barrier is in a state of disrepair and is to be repaired to a satisfactory manner. 5) The air conditioning duct is to be removed from the shower located in the laundry. 6) A smoke alarm is to be installed on the lower floor level in accordance with Part 3.7.2 of the Building Code of Australia. In view of the above, at this stage a building Certificate will not be issued, however, upon satisfactory rectification of the above within 60 days, and subject to present conditions on the site and the building thereon remaining unchanged, a Building Certificate can then be issued by Council." 5 That letter appears to have been received by the vendors' solicitor about 28 September 2007, that is, just before the long weekend. Mr Wood said that about Friday 5 October 2007 he received from his solicitor a copy of the Council's letter of 26 September 2007 and that this was the first notice he had of the issues raised by the Council. By letter of 5 October 2007 a copy of the Council's letter was sent by the vendors' solicitor to the purchaser's solicitor. 6 There was a discussion between Mr Wood and Mr Lyons about the Council's requirements which I think probably took place about 12 October 2007. Mr Lyons was concerned about the Council's requirement that the pool be fenced. According to Mr Wood, Mr Lyons said words to the following effect: "Apart from the pool fencing all the other issues raised by the council are only minor and aren't a problem for me. I'm connected with the building industry and I intend to do major renovations to the property anyway." 7 Mr Lyons said that prior to the exchange of contracts he was not told by the vendors that the Council had not issued a Building Certificate. Mr Lyons said that it was important to him that a Building Certificate should issue and it became more important as time went on as he was having great difficulty in accessing funds and he assumed a conventional lender would require a clear Building Certificate of some description. I doubt if this assumption is correct. A conventional lender would probably either require the works specified by the Council to be carried out within 3 – 6 months of the loan being advanced, or withhold a small portion of the advance until they were carried out. 8 Mr Lyons said that he and Mr Wood discussed the pool fencing and how it could be carried out. Mr Wood told Mr Lyons that he (Wood) would not be making any of the repairs mentioned in the Council's letter and that he (Lyons) would have to deal with them. Mr Lyons said he was shocked by this and did not say much. Mr Lyons said there was not a great amount of conversation about the requirements of the Council's letter. 9 Mr Lyons agreed (T 31) that at no time prior to his solicitor's letter of 22 November 2007 did he raise with Mr Wood any problem with the building certificate other than the pool fencing. Mr Lyons did not instruct his solicitor to make the vendors' solicitor aware that a clear building certificate was a matter of concern to him. 10 Mr Lyons agreed that the only time his solicitor gave any indication to the vendors' solicitor that there may have been a problem as to the issue of a building certificate was the day before the notice to complete was about to expire entitling the vendors to terminate the contract 11 Mr Lyons agreed that he knew before he entered into the contract that there was nothing in it that required a building certificate to be provided. Mr Lyons is an electrician. His understanding of the quality of buildings and the defects that can occur extends beyond electrical problems and defects. He had a general understanding of building issues without being an expert. Mr Lyons agreed that he had discussions with Mr Wood about renovations to the property he was considering. They disagreed as to some of the details discussed. 12 Mr Lyons agreed that, as to the pool fence issue, he did say to Mr Wood at one stage that he would have a look at the best way around it. Mr Lyons said that as to the works listed in paragraphs 1 to 5 of the Council's letter of 26 September 2007, they did seem to him, apart from the pool fencing, to be minor. This was subject to a professional builder having a look at those works. Mr Lyons did not get a professional builder to look at the property. 13 Mr Lyons agreed that at no time from the date he exchanged the contract parts to the commencement of these proceedings did he have the money to purchase the vendors' property. Mr Lyons agreed that he had a number of conversations with Mr Wood in which he (Lyons) told Mr Wood that the only reason he had not settled was because he did not have the money as the money he was expecting had not arrived. Mr Lyons told Mr Wood that he (Lyons) would finalise the sale once the money arrived. 14 Clause 5 of the Contract relevantly provides: "If the purchaser is or becomes entitled to make a requisition the purchaser can make it only by serving it- 5.1 if it arises out of this contract or it is a general question about the property or title within 21 days after the contract date." By the definition in clause 1 "requisition" means "an objection, question or requisition (but the term does not include a claim)". 15 The purchaser's solicitor forwarded Requisitions on Title to the vendors' solicitor on about 27 September 2007. By letter of 6 November 2007 sent by facsimile to the purchaser's solicitor and received at 12.42 pm that day, the vendors' solicitors provided replies. 16 The relevant requisitions and replies are as follows: Requisition 17A(b) "Have the provisions of the Local Government Act 1919, as amended and the Ordinances thereunder and of the Local Government Act 1993 relating to subdivisions and buildings been observed and complied with in respect of the subject property?" Reply: "As far as the Vendor is aware, Yes." Requisition 17A(e) "Have all the requirements of the Local Government Act 1919 as amended and the Ordinances thereunder and of the Local Government Act 1993 relating to alterations and/or addition to buildings been complied with in respect of the subject property?" Reply: "The purchaser should rely on his own enquiries." Requisition 17A(f): "Does the vendor hold or is the vendor aware of a certificate of compliance issued under s 317A of the Local Government Act 1919 or of a building certificate issued in respect of the property?" Reply: "No" 17 The answers given to requisitions 17A(b) and (f) were acceptable. The purchaser challenged the answer given to Requisition 17A(e). He did not press his challenge to the answer to Requisition 17A(d) in view of Windyer J holding in Crowe v Rindock Pty Ltd [2005] NSWSC 375 that that requisition was not permissible. 18 I agree with the statement of Windeyer J at [11] in Crowe v Rindock Pty Ltd that it is generally accepted that a reply to a permissible requisition to the effect "the purchaser must rely on his own inquiries" is insufficient whereas the response "not so far as the vendor is aware, but the purchaser should make his own inquiries" is permissible. 19 This raises the question whether Requisition 17A(e) was permissible? It was conceded that Requisition 17A(e) was not in the strict sense a requisition on title but the purchaser submitted that it was nevertheless a requisition which should be responded to. In Crowe at [23] Windeyer J pointed out that requisitions were not limited to requisitions on title. 20 However, what makes Requisition 17A(e) impermissible it its breadth. It asks if all the requirements of the Local Government Act 1919 and the Ordinances made thereunder and of the Local Government Act 1993 relating to alterations and/or additions to buildings have been complied with in respect of the subject property. 21 The Local Government Act 1919, the Ordinances and the Local Government Act 1993 (the successor to the 1919 Act) are voluminous. It is debateable whether the words "relating to alternations and/or additions to buildings" apply just to the requirements of the Local Government Act 1993 or also apply to those of the Local Government Act 1919 and the Ordinances thereunder. I think that the latter is the better view. See, for example, cl 20, Part 3, Schedule 7 of the Local Government Act 1993. 22 The vendors cannot be expected to go through the Acts and the many Ordinances, isolate what related to alternations and/or additions to the building in question (principally the house) and then determine whether all the requirements have been complied with. 23 In re Ford & Hill (1879) 10 Ch D 365 at 369 James LJ held that a searching interrogatory put to the vendors and their solicitors was impermissible and not a requisition. There is no duty to answer a question which amounts to a searching interrogatory. Baggallay and Bramwell LJJ took the same view as James LJ. 24 The defendant submitted that there was no need to look at an extensive search of the Local Government Act and Ordinances and that all that was needed was a letter from the Council setting out what work had to be done to obtain a building certificate from Council. That was the important matter for the purchaser. It is no answer to the question whether the requisition is permissible to point to a step that could have been taken by one or both of the parties. Attention has to be directed to the terms of the requisition. Requisition 17A(e) was not a permissible requisition. 25 The Council's letter and its terms did not come to the Vendors' attention until after the exchange of the contractual parts. 26 The defendant relied on the late replies to requisitions. He and his advisers contended that they did not have sufficient time to consider them before the Notice to Complete was served. The replies, it was also submitted, were not provided within a reasonable time. 27 With 7 November 2007 stated in the contract as the completion date furnishing replies to requisitions about 12.42 hours on 6 November 2007 allows little time for consideration of the replies. The replies were unremarkable and could readily be digested. The copy search, the copy deposited plan, the copy easements, the copy certificate under section 149, Environmental Planning and Assessment Act 1979, the copy Warringah Local Environmental Plan 2000, the copy Sewerage Service Diagram and the copy survey report provided considerable material to the purchaser and indicated that there were likely to be few problems in what could be described as a subdivision envisaging quality housing. 28 Although the replies to the requisitions were provided late I do not think that his had any adverse effect in the circumstances of the present contract or provided a sufficient reason for the purchaser not to settle on 7 November 2007. I do not think there were any circumstances which prevented the vendor issuing a Notice to Complete on 8 November 2007. 29 I record these further events. In early November 2007 Mr Wood spoke with Mr Lyons and advised that the Woods' new property was not ready yet and requested that settlement be delayed for a few weeks. Mr Lyons declined because his landlord was pressing him to vacate the landlord's property and stated that the Lyons' family wanted vacant possession as early as possible on the morning of settlement. Consequently, the vendors moved out of the property on 6 November 2007. 30 On 7 November 2007, on Mr Wood ascertaining from his solicitor that settlement would not take place that day, he telephoned Mr Lyons who explained that he had not completed because the money he was expecting had been delayed, but it would only be a matter of days. Mr Lyons asked Mr Wood to be patient. 31 On 8 November 2007 the vendors issued a Notice to Complete requiring settlement to take place at 3.00 pm on 23 November 2007 at the offices of the vendors' solicitors and making time of the essence. 32 The vendors asserted that they were ready and willing to transfer the property to the purchaser in accordance with the contract. The Notice stated: "Unless you complete within the time specified … the vendors will be entitled to terminate the contract." 33 On 14 November 2007 Mr Lyons apologised orally to Mr Wood for the delays and explained that the only reason he (Lyons) had not completed the purchase was because the funds from England had not arrived and that he had been promised that the funds would arrive in Sydney on 16 or 19 November 2007. 34 On 21 November 2007 Mr Woods again spoke with Mr Lyons and asked if the money had arrived. Mr Lyons stated that there had been a hold up due to some problems within the family over entitlements, that he hoped to resolve these soon and complete the purchase, that he had a backup position as a company his brother and he owned which was worth $1.5 million was being sold and that bridging finance was not an option. Mr Lyons indicated that he was speaking with the executors. Mr Lyons stated that his family was very keen to buy the property and requested some more time. 35 By letter of 22 November 2007, sent by facsimile from the purchaser's solicitors to the vendors' solicitor, the purchaser denied the validity of the Notice to Complete, inter alia, for the following reasons: "1. The Notice to Complete is defective both as to form and as to content. 2. The Contract makes no specific provision in relation to the Application for a Building Certificate applied for by the vendors apparently prior to the date of the subject auction. The vendor was aware or should reasonably have been aware that the issue of a clear building certificate was a material matter concerning the purchaser. The contract should have made provision that the vendors were applying to the council for a Building Certificate in order to alert the purchaser in relation to the building certificate issue. The purchaser therefore regards the non-disclosure of the Building Certificate till after exchange of contracts as a material issue. Accordingly, the purchaser asserts that the vendors should have rectified the requirements of the Council before being in a position to issue a Notice to Complete. The purchaser shall reserve his legal rights. 3. The Notice to Complete does not indicate more fully the rights of the vendor on termination and the effect that a termination by the vendor would have upon the purchaser's rights." 36 The purchaser submitted that the Notice to Complete should have set out more fully the rights of the vendors on termination and the effect of termination. The Notice to Complete merely indicated that the vendors will be entitled to terminate the contract. It should have gone on to say, it was submitted, what the effects of termination would be upon the purchaser, namely that the vendor could resell the subject property, that the deposit moneys would be forfeited and that the vendor would be entitled to damages. 37 Clause 9 of the contract covers these matters. It provides: "9 Purchaser's default If the purchaser does not comply with this contract (or a notice under or relating to it) in an essential respect, the vendor can terminate by serving a notice. After the termination the vendor can – 9.1 keep or recover the deposit (to a maximum of 10% of the price); 9.2 hold any other money paid by the purchaser under this contract as security for anything recoverable under this clause – 9.2.1 for 12 months after the termination; or 9.2.2 if the vendor commences proceedings under this clause within 12 months, until those proceedings are concluded; and 9.3 sue the purchaser either - 9.3.1 where the vendor has resold the property under a contract made within 12 months after the termination, to recover - * the deficiency on resale (with credit for any of the deposit kept or recovered and after allowance for any capital gains tax or goods and services tax payable on anything recovered under this clause); and * the reasonable costs and expenses arising out of the purchaser's non-compliance with this contract or the notice and of resale and any attempted resale; or 9.3.2 to recover damages for breach of contract." 38 In my opinion, in view of these contractual provisions, the Notice to Complete does not have to repeat them. Under clause 1 "terminate" means "terminate this contract for breach". 39 There is a helpful discussion of principle in the judgment of Gibbs J in Balog v Crestani (1975) 132 CLR 289 at 296 – 297. The notice in the present case was not ambiguous. It did not suggest that the contract would be kept on foot. The observations in Balog v Crestani have to be read in conjunction with clause 9 of the contract under consideration. 40 In my opinion, in the light of the terms of the instant contract, the Notice to Complete was not deficient. 41 By letter of 23 November 2007 by facsimile to the vendors' solicitor, the purchaser's solicitor sought a further period of up to 14 days in which to settle the purchase. By letter of 23 November 2007 by facsimile to the purchaser's solicitor, the vendors' solicitor replied that the vendors would agree to extend the expiration of the Notice to Complete at 3.00 pm on 28 November 2007 "on the condition that the balance of the 10% deposit is paid into the Real Estate's Trust Account by 5.00 pm on the 26th November 2007". That did not occur. 42 By letter of 27 November 2007 by facsimile to the purchaser's solicitor, the vendors' solicitor, after briefly referring to the contact and summarising clause 9, wrote: "NOW THEREFORE you are hereby given notice that you are required to pay the balance of the deposit, i.e., $56,500.00 and that you have forfeited the deposit of $113,000.00 and all other moneys paid by you and that the said contract is entirely at an end so far as it relates to the sale and purchase of the said land and further that in pursuance of the hereinbefore recited Condition of Sale the Vendor shall proceed to resell the said land and will hold you responsible and liable as well for any deficiency in price as for all costs charges and expenses occasioned by such re-sale." 43 While clause 9.3.2 refers to recovering damages for breach of contract and that is set out in the recital of the terms of clause 9 of the contract, the notice does not state that damages for breach of contracts would be claimed. The entitlement to damages arises under the contract and the lack of mention of a claim for damages does not prevent such a claim being made. 44 The vendors additionally submitted that, even assuming Requisition 17A(e) was permissible, any answer could not relieve the purchaser of his obligation to complete because at the date of the contract the vendors' title was good and there was no defect in title: Carpenter v McGrath (1996) 40 NSWLR 39 at 41 (Clarke JA), 51C – 52F (Sheller JA) and at 68 – 69 (Cole JA). The vendors submitted that, at best, any answer given may have given the purchaser a right to sue for damages. I agree. Under the contract the right of the purchaser to make a claim has probably elapsed by effluxion of time. In Carpenter v McGrath at 54 – 55 Sheller JA referred with approval to Megarry and Wade, The Law of Property (1984) at 611 where the authors describe a good title as a title free from encumbrances, including statutory liabilities "if they are not merely potential or imposed on all property generally". Sheller JA noted that the authors continue: "… but a statutory liability which first attaches to the property after the date of the contract must be borne by the purchaser (for the risk is on him) except to the extent that it is an outgoing which the vendor must meet as attributable to the period of his own occupancy, and except where it prevents the vendor from giving vacant possession on completion." 45 The council may have taken action if it considered that the unfenced pool was unsafe. Whether it would ever have done so is a moot point. 46 I do not think that the vendors were bound to disclose that they had sought a building certificate and had not received one. 47 The vendors put their claim on an alternative basis. They submitted that if the Notice to Complete was invalid the alleged repudiatory conduct of the vendors was not accepted and the vendors later terminated for the purchaser's repudiation. 48 About 21 January 2008 the purchaser's solicitor wrote to the vendors' solicitors that the vendors and the purchaser have agreed to complete the sale and the subject of their contract on the basis that the vendors receive $1,350,000 in full settlement of their claims and that the purchaser wanted to settle the purchase as soon as the purchaser's funds became available. Mr Lyons, in his oral evidence, confirmed that he still wanted to buy the property but he still did not have the money to do so. A deed was envisaged. 49 As the original purchase price was $1,300,000, the purchaser's proposition involved the vendors being paid an extra $50,000. The vendors' solicitor replied (on 22 January 2008) that, subject to written confirmation that the funds were available, the vendors agreed in principle to terms set out in the letter of 21 January 2008 from the purchaser's solicitor. 50 The vendors' solicitor, by a separate letter on 22 January 2008, further advised that the vendors required the matter to be finalised by 29 January 2008. 51 By letter of 30 January 2008, the purchaser's solicitor submitted a draft deed. By letter of 1 February 2008 by facsimile the vendors required a firm completion date to be inserted, namely at 3.00 pm on 4 February 2008 at a nominated venue. In a further letter of 1 February 2008 to the purchaser's solicitor, the vendors' solicitor advised that, should the matter not be completed as set out in their earlier letter (fax), the property will be listed for sale on 6 February 2008 and proceedings would be commenced for the recovery of costs and damages. The vendors' solicitor wrote again to the purchaser's solicitor on 22 and 28 February 2008. The letters were headed "without prejudice". 52 The purchase was not completed and the settlement did not eventuate. The funds had not come through. 53 Mr Lyons agreed in cross-examination that at no stage until these legal proceedings actually came on did he ever tell the purchasers that the contract was off. Nor did he tell his solicitor to so advise the vendors. Mr Lyons agreed that he never told the vendors that he wanted the deposit back. He agreed that he told Mr Wood that he could not let him have the deposit because his solicitor said not to do so. He wanted to let the vendors have the deposit paid. 54 The vendors submitted that: (a) even if the vendors in serving the Notice to Complete repudiated the contract on 8 November 2007, that repudiation remained unaccepted by the purchaser; (b) the purchaser elected to treat the contract as still on foot after the letter of termination on 27 November 2007 had been served. No request in relation to further requisitions was made and the purchaser did not raise any issue concerning a building certificate. By his conduct the purchaser did not accept the alleged repudiatory conduct of the vendors, waived his right (if any) to accept that repudiation, waived any requirement that the vendors provide further answers to requisitions and waived any purported need for any building certificate. (c) the purchaser was ultimately unable to complete and did not complete and the vendors elected to terminate after reasonable notice and commenced proceedings because the defendant was not ready, willing and able to complete. 55 What actually happened was that, despite the events of November 2007, Mr Wood hoped that Mr Lyons' funds would come through and that he would be able to complete the purchase. However, Mr Wood was not prepared to wait indefinitely as he had plans of his own including obtaining another property. Mr Wood wanted the matter completed promptly. Mr Lyons wanted to purchase the property but could not obtain the funds to do so. He recognised that Mr Wood had to be compensated for what had occurred and between them they reached an accommodation. Mr Lyons recognised that he had to negotiate a new arrangement with Mr Wood and did so. Both recognised that the earlier contract had come to an end. The new arrangement could not be implemented because Mr Lyons' anticipated funds never arrived and it was an essential condition precedent, so far as the vendors were concerned, to entering into a new agreement that Mr Lyons had the funds to complete the new arrangement would settle by 6 February 2007. I think that by 21 January 2008 Mr Lyons had accepted that the vendors had terminated the earlier contract because of a breach on his part. 56 I have not accepted the plaintiff's alternative argument. However, I accept that, on any view, the vendors elected to terminate after reasonable notice and commenced proceedings because the purchaser was not able to complete. He was not ready, willing and able to complete. 57 I am of the opinion that the Notice to Complete served on 8 November 2007 making time of the essence was sufficient in view of the terms of the contract and that the vendors (the plaintiffs) validly terminated the contract by their notice of termination on 27 November 2007 served on or about that date. Damages – Balance of Deposit 58 The ten per cent deposit of $113,000 is forfeited by the purchaser. The vendors are entitled to recover that sum. $56,500 is presently held by the agent, Raine and Horne, Forrestville. That sum should be paid to the vendors. As the agent is not a party but has intimated that he will act on the written authority of both parties, an order should be made that Mr Lyons authorise the agent to pay the deposit held to the vendors (plaintiffs). 59 The claimed damages of $67,641.22 are made up of $56,500, being 5% of the contract price (special condition 32), and $11,141.22 being said to be damages that flow naturally from the breach of contract or by reason of promissory estoppel. Other damages 60 Mr Wood stated that in reliance upon Mr Lyons' assurance that he would be purchasing the property and that he required vacant possession as early as possible on 7 November 2007, the day of settlement specified in the contract, his wife and he booked removalists who attended on 6 November 2007 and packed their household belongings and put them into storage with Dawson Moving and Storage (NSW) Pty Ltd. Their belongings remained in storage until 14 July 2008 when they moved into their new home. Between 6 November 2007 and 14 July 2008 Mr Wood said that he and his wife, with only a suitcase each, resided with various family members and also stayed in various short-term accommodations to give their children some space. 61 Mr Wood said that the completion date of the sale of the property was 16 April 2008. Mr Wood produced copies of invoices he paid as to storage costs, real estate agent expenses, rates, insurance and accommodation costs incurred from 7 November 2007 until 16 April 2008. There was no loss incurred on the resale of the property as it sold for the same price Mr Lyons agreed to pay but there was additional advertising. 62 The following amounts should be allowed: (a) WE Jamieson Real Estate Pty Ltd $3,568.00 -advertising costs – separate to sale fee (b) Warringah Shire Council – rates $1,048.00 ($347.70 & $700,54) (c) Sydney Water $300.00 (d) Home Insurance – Total premium due on 22 April 2007 - $583 - Allow $240.00 Accommodation costs (e) Oaks Pacific Blue Resort, Salamander Bay, March 2008 $1,225 $2,500.00 Rafferty's resort, Cams Wharf, December 2007 $1,275 (I have not allowed $100.00 for Rest Easy Motel Wentworth Falls, paid about 5 May 2008 as that is after 16 April 2008. (f) Storage costs $1,100.00 Mr Wood has submitted an account from Dawson Moving & Storage (NSW) Pty Ltd for an amount of $3,357.00 for storage to 11 July 2008. That includes a late cancellation fee of $600. The vendors would have had to pay for removalists costs in any event. Storage should only be allowed from 7 November 2007 to 16 April 2008. The accounts includes an item of Ex Store of $1,122.00 The goods of the vendors would have to be removed in any event whether they were stored on or about 6 November 2007 or 16 April 2008. There can be no precision in assessing this amount and it is proposed to allow $8,756.00 63 Under the contract between the Woods and Mr Lyons the Woods were to give vacant possession on completion. They moved out to comply with that provision. But the purchaser was unable to complete. He did not have the funds and was never able to complete. The contract was terminated by the plaintiff –vendors. If they had known that the contract was not going to be completed by the purchaser, they could have stayed in the subject property until about 16 April 2008 when its sale was completed to another purchaser. It appears that they were not able to move into their new home until about 11 July 2008. 64 Subject to the 5% deposit being released by the agent, the plaintiffs are entitled to the following: Damages - Balance of deposit $56,500.00 Other damages $8,756.00 $65,256.00 65 I appreciate the personal difficulties of the defendant, but these do not amount to a sufficient reason not to forfeit the whole of the deposit or to order repayment of that part of the deposit which he paid. 66 As the plaintiff-vendors have been substantially successful their costs must be paid by the defendant-purchaser. 67 I make the following declarations and orders: 1. Declare that the plaintiffs validly terminated the contract made between the plaintiffs and the defendant on about 26 September 2007 for the sale and purchase of the property known as 5 Strathbane Avenue, Killarney Heights (also known as 41 Londonderry Drive, Killarney Heights) contained in Folio Identifier 883/235 514. 2. Order that the defendant authorise and direct the Real estate Agent, Raine & Horne Forrestville to cause the deposit of $56,500.00 to be released to the plaintiff-vendors, Donald Victor Wood and June Mary Wood and execute all documents and take all necessary steps to effect such release. 3. Judgment for the plaintiff for $65,256.00. 4. Defendant to pay plaintiffs' costs of these proceedings. 5. Liberty to apply on 3 days notice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.