KALAMEN v AL AUBODI [2010] NSWSC 544

New South Wales Supreme Court

CITATION : KALAMEN v AL AUBODI [2010] NSWSC 544

HEARING DATE(S) : 19-21/05/2010

JUDGMENT DATE : 28 May 2010

JURISDICTION : Equity

JUDGMENT OF : Bryson AJ at 1

1. A declaration that on 6 May 2009 the plaintiff validly terminated the contract for the sale of land comprised in Lot 15 of Deposited Plan 860350 and known as 311 Wilson Rd, Green Valley with the first defendant and dated 5 March 2009. 2. A declaration that the first defendant has forfeited the deposit paid to the second defendant as stakeholder to the plaintiff, being the sum of $37,500 3. An order that the second defendant pay to the plaintiff the sum of $37,500 plus interest from 6 May 2009. DECISION : 4. An order that the first defendant to do all that is reasonably required to cause the second defendant to release to the plaintiff the sum of $37,500 plus interest from 6 May 2009. 5. An order pursuant to section 74MA(2) of the Real Property Act 1900 (NSW) that the first defendant remove caveat number AE664381B 6. Order that the first defendant pay the plaintiff's costs of the proceedings assessed as if the hearing had taken two days. 7. Order that the first defendant pay the second defendant's costs as a submitting defendant. 8. Dismiss the cross-claim with costs.

CATCHWORDS : VENDOR and PURCHASER - Notice to Complete - Contract authorised notice to complete of 14 days - notice required completion at 2.00 pm on 14th day - HELD the notice was not a 14 day notice as authorised by the Contract but in the circumstances in fact allowed reasonably sufficient time Deposit - forfeiture - relief under Conveyancing Act 1919 s55(2A) - Purchaser could not complete in time because of delays by his Mortgage Broker - Vendor did not contribute to causes of Purchser's default - on review of facts, relief against forfeiture refused.