Kayzanate Pty Limited & Anor v Russell Spry & Beverly Spry & Anor [2009] NSWSC 672

New South Wales Supreme Court

CITATION : Kayzanate Pty Limited & Anor v Russell Spry & Beverly Spry & Anor [2009] NSWSC 672

HEARING DATE(S) : 18 June 2009

JUDGMENT DATE : 21 July 2009

JURISDICTION : Equity

JUDGMENT OF : Bergin CJ in Eq

DECISION : Plaintiffs' claims dismissed. Defendants entitled to payment of funds held in trust account.

CATCHWORDS : CONTRACT - Construction of contract - "Contamination analysis" and "treatment" - Whether defendant agreed to pay for assessment of site, subject of a sale contract, irrespective of whether defendant liable in respect of remediation of contamination - Whether plaintiff entitled to specific performance - Whether defendant entitled to retain deposit - Whether defendant entitled to payment of balance of purchase moneys held in trust account

McCann v Switzerland Insurance (2000) 203 CLR 579 CASES CITED : Mehmet v Benson (1965) 113 CLR 295 Synergy Protection Agency Pty Ltd v North Sydney Leagues' Club Limited [2009] NSWCA 140

Kayzanate Pty Limited (First Plaintiff) PARTIES : Kayzantan Pty Limited (Second Plaintiff) Russell Spry & Beverly Spry (First Defendants) Detadot Pty Limited (Second Defendant)

FILE NUMBER(S) : SC 6440 of 2008

COUNSEL : A Hourigan (Plaintiffs) J Anderson (Defendants)

SOLICITORS : Penrhyn Parker (First and Second Plaintiffs) Wayne Boom (First and Second Defendants)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN CJ IN EQ

21 JULY 2009

6440 of 2008 KAYZANATE PTY LIMITED & ANOR v RUSSELL SPRY & BEVERLY SPRY & ANOR JUDGMENT 1 The first plaintiff, Kayzanate Pty Limited, entered into a contract to purchase land at 2775 Princes Highway, Moruya, New South Wales (the Princes Highway Property) for $400,000 (the Princes Highway Contract). The vendors are the first defendants, Russell Elford Spry and Beverly Ann Spry. The plaintiff seeks an order that the defendants specifically perform the Princes Highway Contract. 2 The Princes Highway Contract was entered into at the same time as the second plaintiff, Kayzantan Pty Limited, entered into a contract for the purchase of land at 91 Campbell Street, Moruya (the Campbell Street Property) for the purchase price of $2.25 million (the Campbell Street Contract). The vendor of the Campbell Street Property, was the second defendant, Detadot Pty Limited (Detadot). 3 Prior to the contracts being exchanged the director of the plaintiffs, Phillip Russell Smith, had a conversation with Mr Spry during which they discussed the issue of whether the Campbell Street property had been contaminated. Mr Spry informed Mr Smith that the petrol tanks had been removed from the site and that there were now inspection wells in those locations. Although Mr Smith gave affidavit evidence that Mr Spry had said that the site had been "cleaned up to the satisfaction of Council", it appeared to me that in cross-examination he moved away from that evidence and claimed that Mr Spry said that the site had been "cleaned up and remediated once the tanks had been removed". 4 Both contracts were exchanged on 27 July 2007. The deposit paid on the Princes Highway Contract was $40,000. The deposit paid on the Campbell Street Contract was $250,000. The completion date for the Campbell Street Contract was 31 December 2007. The completion date for the Princes Highway Contract was 12 months from 27 July 2007. 5 Each contract included the following Special Conditions: