Borgese v Revolution Gosford Pty Ltd [2010] NSWSC 316

New South Wales Supreme Court

CITATION : Borgese v Revolution Gosford Pty Ltd [2010] NSWSC 316

HEARING DATE(S) : 20 April 2010 JURISDICTION : Equity

JUDGMENT OF : Biscoe AJ

EX TEMPORE JUDGMENT DATE : 20 April 2010

DECISION : (1) Declaration that the contract between the plaintiffs and first defendant has been validly terminated; (2) Declaration that the deposit paid pursuant to the contract has been forfeited to the plaintiffs; (3) Order the second defendant to pay the plaintiffs $56,500 held by the second defendant as stakeholder pursuant to the contract together with accrued interest; (4) Order the first defendant to pay the other parties' costs on an indemnity basis.

CATCHWORDS : VENDOR AND PURCHASER - whether vendors had validly terminated contract for sale of land - whether deposit forfeited to vendors - whether indemnity costs should be ordered against purchasers

CASES CITED : Carpenter v McGrath (1996) 40 NSWLR 39 Louinder v Leis [1982] HCA 28, 149 CLR 509

Vincent Borgese (first plaintiff) PARTIES : Paula Frances Borgese (second plaintiff) Revolution Gosford Pty Ltd (first defendant) Chapman and Frazer Real Estate Pty Ltd (second defendant)

FILE NUMBER(S) : SC 2009/00322334

COUNSEL : Mr M Zammit (plaintiffs)

SOLICITORS : Gary Cassim & Associates (plaintiffs)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BISCOE AJ

20 April 2010

2009/00322334 VINCENT BORGESE v REVOLUTION GOSFORD PTY LTD EX TEMPORE JUDGMENT 1 HIS HONOUR: On 11 August 2008 the plaintiffs, as vendors of certain land at Gosford (the Vendors), entered into a contract (the Contract) for the sale of land with the first defendant as purchaser (the Purchaser). By summons dated 18 December 2009 the Vendors seek declarations that the Contract has been validly terminated by the Vendors; a declaration that the deposit has been forfeited to the Vendors; and an order against the second defendant, as stakeholder of the deposit (the Vendors' Agent), to pay the deposit and interest to the Vendors. 2 The Purchaser has not served any affidavit evidence and does not appear today. The Vendors' Agent has filed a submitting appearance. FACTUAL BACKGROUND 3 The completion date provided for under the Contract was 30 September 2008. On 29 October 2008 the Purchaser's solicitor wrote to the Vendors' solicitor stating that the Purchaser's lender would not be in a position to complete on 30 September 2008. In reply, the Vendors' solicitor sent a facsimile marked urgent on 30 September 2008 to the Purchaser's solicitor which stated: "We refer to your recent facsimiles received by us in respect of the above matter.