Kapos v Jury [2011] NSWSC 1090

Supreme Court New South Wales

Medium Neutral Citation: Kapos v Jury [2011] NSWSC 1090 Hearing dates: Wednesday, 7 September 2011 Decision date: 07 September 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Make orders 1, 2 and 3 contained in the summons. Catchwords: REAL PROPERTY - Contract for the sale of land - purchaser fails to attend settlement - purchaser unable to be contacted - contract validly terminated, deposit forfeited. PRACTICE AND PROCEDURE - document served in accordance with agreement - purchaser unable to be contacted - contract for sale of land provides that service on party's solicitor is sufficient service - service sufficient under UCPR r 10.6. Legislation Cited: (NSW) Uniform Civil Procedure Rules (2005), r 10.6 Category: Principal judgment Parties: Peter Kapos (first plaintiff) Maria Kapos (second plaintiff) Najet Jury (first defendant) Moorebank Realty P/L (second defendant) Representation: Counsel: Mr G Carolan (plaintiffs) Solicitors: Pserras Lawyers (plaintiffs) File Number(s): 2011/275302

Judgment (ex tempore) 1HIS HONOUR: By summons filed on 26 August 2011 the plaintiffs claim a declaration that a contract between them as vendors and the first defendant Najet Jury as purchaser dated 31 July 2011 for the sale of property at Banbury Crescent Chipping Norton has been validly terminated. They also seek a declaration that the deposit of $66,000 paid under the contract has been forfeited to the plaintiffs; an order that the second defendant, who is the selling agent and stakeholder, pay to the plaintiff the amount of the deposit; damages for breach of contract, and consequential orders. 2The evidence establishes that the plaintiffs attempted to settle the contract at the appointed time and place for settlement on 28 June 2011 and were ready, willing and able to do so, but the purchaser did not attend. Attempts by the plaintiffs' solicitors at further communications were largely unsuccessful. On 30 June 2011, the plaintiff gave notice to the defendant's solicitors that the contract was terminated. On 20 July, the plaintiff demanded payment of the deposit. Further attempts at communication with the purchaser's solicitors were again largely unsuccessful but, on or about 29 July 2011, the purchaser's solicitors George Khoury and Co indicated that they were still acting for the purchaser. 3The summons was filed on 26 August and made returnable pursuant to an abridgement of time for service on 31 August 2011. It appears (from an affidavit of Demitrios Psennas sworn 20 August 2011), that it was served at the office of George Khoury and Co on 29 August 2011. 4On 31 August 2011, I was not satisfied that sufficient attempts had been made to personally serve the first defendant, in circumstances where George Khoury and Co had sent to the Court on 29 August a facsimile stating: We acted for Najet Jury in the proposed purchase of property at Banbury Crescent Chipping Norton. In relation to the matter before the Court we have been unable to contact Najet Jury for instructions. We therefore have no instructions to act on his behalf in these proceedings. 5As a result of this correspondence, further inquiries by the plaintiffs' solicitors were made as to the defendant's whereabouts. A report of Express Mercantile reveals that attempts to trace Mr Jury to addresses connected with him have failed to locate him, but that there is some suggestion that he has left Australia (as appears from the affidavit of Demitrios Psenna, the plaintiffs' solicitor, sworn 6 September 2011). Other attempts to locate the defendant have been unsuccessful and notice of the adjourned date, time and place of the hearing has been given to George Khoury and Co. 6Clause 20.6.3 of the contract provides that a document "under or relating to this contract" is served on a party if it is served on the party's solicitor, even if the party has died or any of them have died. The party's solicitor is the party's solicitor named in the contract or in a notice served by the party. The purchaser's solicitor named in the contract is George Khoury and Co. The summons is a document relating to the contract. 7(NSW) Uniform Civil Procedure Rules (2005), r 10.6, relevantly provides: (1) In any proceedings, any document (including originating process) may be served by one party on another (whether in New South Wales or elsewhere) in accordance with any agreement, acknowledgment or undertaking by which the party to be served is bound. ... (2) Service in accordance with subrule (1) is taken for all purposes (including for the purposes of any rule requiring personal service) to constitute sufficient service. 8I am satisfied that the summons has been served under r 10.6. While, particularly in circumstances where it is doubtful that the solicitor retains instructions, it is ordinarily desirable that personal service be effected, where, as here, the first defendant cannot be located by reasonable enquiries, the Court need not insist on further attempts at service where there has been effective service under UCPR r 10.6. 9I make orders (1), (2) and (3) in the plaintiffs' summons. 10I order that the first defendant pay the plaintiff's costs of the proceedings to date. 11I adjourn the balance of the summons to Wednesday 5 October 2011 at 9am before the Registrar.