Gray v Latter (No.2) [2014] NSWSC 207

Supreme Court New South Wales

Medium Neutral Citation: Gray v Latter (No.2) [2014] NSWSC 207 Hearing dates: On the papers Decision date: 11 March 2014 Jurisdiction: Common Law Before: Adamson J Decision: (1) Order that the price nominated in the contract for sale between the plaintiffs as vendors and the defendants as purchasers for the property known as129 Davis Road, Swan Bay be varied from $240,000 to $167,500 and that clause 39 be amended accordingly. (2) Direct the parties to execute a variation of the mortgage in registrable form to vary the principal sum advanced from $235,000 to $162,500. (3) Order the plaintiffs to deliver up a discharge of mortgage in registrable form to the defendants, if: (a) the defendants pay to the plaintiffs the sum of $137,900, less any amounts paid after 28 February 2014 in reduction of that sum in accordance with (3)(b) below, within 12 weeks of 28 February 2014, being 23 May 2014; and (b) the defendants continue to pay to the plaintiffs $300 per week, being $150 for interest and $150 in repayment of principal until the earlier of: (i) payment of the outstanding principal sum in accordance with order (3)(a) above; and (ii) 23 May 2014. (4) If the conditions provided for in (3)(a) and (b) are not met, order: (a) Judgment for possession of the property in favour of the plaintiffs. (b) Grant leave to issue writ of possession of the property such writ to issue at any time on and from 24 May 2014. (c) Judgment for the defendants against the plaintiffs in an amount of $24,600 plus the sum of any payments of $150 per week made by way of interest since 28 February 2014 until the date on which the defendants vacate the premises. (5) Grant liberty to apply on three days' notice. (6) Order the plaintiffs to pay the defendants' costs of the proceedings. Catchwords: CONTRACTS REVIEW - Orders to vary principal sum in mortgage COSTS - defendants substantially succeeded - entitled to costs although not successful on some arguments Legislation Cited: Civil Procedure Act 2005 (NSW) Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law) Contracts Review Act 1980 (NSW) National Consumer Credit Protection Act 2009 (Cth), Schedule 1 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Gray v Latter [2014] NSWSC 122 Category: Costs Parties: John Russell Gray (First Plaintiff) Narelle Lynn Steinwede (Second Plaintiff) Geoffrey Wayne Latter (First Defendant) Sonia Lee Perkins (Second Defendant) Representation: Counsel: M Young SC (Plaintiff) M Klooster (Defendants) Solicitors: Bransgrove Lawyers (Plaintiffs) Cordato Partners Lawyers (Defendants) File Number(s): 2013/75672 Publication restriction: Nil