Ari v Decevic [2013] NSWSC 1967

Supreme Court New South Wales

Medium Neutral Citation: Ari v Decevic [2013] NSWSC 1967 Hearing dates: 18, 19, 20 February 2013 Decision date: 24 December 2013 Jurisdiction: Common Law Before: Slattery J Decision: Plaintiff successful against the defendant in recovering value of deposit. Judgment for the cross defendant bank against the cross claimant. Directions made for argument as to costs. Catchwords: CONTRACTS - contract for the sale of land - deposit provided by a bank deposit bond - completion date subsequently extended to accommodate a lease to a third party - validity of the deposit bond not extended - defendant not ready to complete at the completion date because of lack of financing - plaintiff terminated the contract, sold the property to a third party at a profit and sued the defendant for the deposit - whether the termination was invalid because the property was not vacant at the extended completion date and at the time of the notice to complete - whether the plaintiff's breach was waived by the defendant - whether the Court should exercise its discretion under Conveyancing Act 1919, s 55(2A) and not order the payment of the deposit.

CONTRACTS - the defendant cross-claimed against the bank for the loss caused by its refusal to finance the purchase of the property - the bank unconditionally approved the loan, issued a deposit bond and sent a written offer of finance to the defendant and her husband - the offer required for the loan to be drawn within 3 months - defendant did not return the signed offer to the bank until after the deadline expired - the defendants subsequent loan application was not approved because of judgment debts discovered on the updated credit check of the defendant's husband - whether a partly written and partly oral loan agreement was entered into between the bank and the defendant and her husband - whether the bank was entitled to refuse to provide finance because of the result of the credit check. Legislation Cited: Conveyancing Act 1919 s 55(2A) (NSW) Conveyancing (Amendment) Act (1930) (NSW) Law of Property Act, 1925 (UK) Uniform Consumer Credit Code Cases Cited: Carrapetta v Rado [2012] NSWCA 202 Castle Hill Tyres Pty Ltd v Luxspice Pty Ltd (1996) 7 BPR 14,959 Dillon v Bepuri Pty Ltd (1989) NSW ConvR 55-436 Havyn Pty Ltd v Webster (2005) 12 BPR 22,837; [2005] NSWCA 182 HG and R Securities Pty Ltd v Sayer [2009] NSWSC 427 Lucantonio v Ciofuli (2003) 11 BPR 21,181 Malouf v Sterling Estates Development Corporation Pty Ltd [2002] NSWSC 920 McNally v Waitzer [1981] 1 NSWLR 294 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Schindler v Pigault (1975) 30 P& Cr 328 Socratous v Koo (1993) NSW ConvR 55-685 Strickland v Grieve (1995) 7 BPR 14,376 Wilde v Anstee (1999) 48 NSWLR 387 Texts Cited: Lindgren, Time in the Performance of Contracts (2nd ed), Butterworths 1982 Category: Principal judgment Parties: Plaintiff- Leon Ari Defendant- Tania Decevic Cross Claimant- Tania Decevic Cross Defendant- Westpac Banking Corporation Representation: Counsel: Plaintiff- P. O'Loughlin Defendant- P. Bolster Cross Defendant- J. White; L.E. Edwards Solicitors: Plaintiff- Michael John Sommerville, Redmond Hale Simpson Defendant/Cross-Claimant- Mark Marando, Marando Solicitors Cross-Defendant- Justin Bates, Gadens Lawyers File Number(s): 2010/333236 Publication restriction: No