Nassif & Ors v Caminer [2009] NSWCA 45

Reported Decision: 74 NSWLR 276

New South Wales Court of Appeal

CITATION: Nassif & Ors v Caminer [2009] NSWCA 45

HEARING DATE(S): 25 February 2009

JUDGMENT DATE: 31 March 2009

JUDGMENT OF: Basten JA at 1; Macfarlan JA at 2; Sackville AJA at 74

(a) Appeal allowed. (b) Cross-appeal dismissed. (c) Set aside the orders made by the primary Judge on 13 May 2008 and 15 July 2008. (d) Declare that the contract of sale dated 17 November 2006 between the Vendors (appellants) and the Purchaser (respondent) was validly terminated by the Vendors. (e) Declare that the deposit of $280,000 paid by the Purchaser to the Vendors be forfeited to the Vendors, together with any interest thereon. DECISION: (f) Order that the Purchaser repay to the Vendors the sum of $280,000 with any interest earned thereon. (g) Order the Purchaser to pay to the Vendors the sum of $40,000 paid to the Purchaser pursuant to the orders made on 15 July 2008, with interest thereon. (h) The summons filed by the Purchaser in proceedings SC 2782 of 2007 ("Purchaser's Summons") be dismissed. (i) The Purchaser pay the costs of the Purchaser's Summons and of proceedings SC 2777 of 2007. (j) The Purchaser pay the Vendors' costs of the appeal. (k) Grant the Respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.

CATCHWORDS: CONVEYANCING - conditions of sale - claims by purchaser - whether entitlement to claim extended to claim in respect of pre-contractual misleading and deceptive conduct - CONVEYANCING - order for return of deposit under Conveyancing Act s 55(2A) - relevance of vendors' higher resale price - whether misleading and deceptive conduct by vendors - relevance of such conduct