Ma v Adams [2015] NSWSC 1452

Supreme Court New South Wales

Medium Neutral Citation: Ma v Adams [2015] NSWSC 1452 Hearing dates: 24-25 August and 3 September 2015 Date of orders: 02 October 2015 Decision date: 02 October 2015 Jurisdiction: Equity Before: Robb J Decision: (1) The plaintiffs' amended summons is dismissed.

(2) The plaintiffs are ordered to pay the defendant's costs of the proceedings.

(3) Exhibits and documents produced on subpoena may be returned forthwith in accordance with the Rules. Catchwords: CONTRACTS – contract for the sale of land – auction – whether defendant's purported termination of the contract was valid due to the plaintiffs' failure to pay the deposit – whether post-dated cheque is not a "cheque" for the purposes of the contract causing a breach of an essential term – construction of contract – definition of "cheque" – post-dated cheque is not a cheque but a bill of exchange – estate agent's acceptance of non-compliant post-dated cheque was unauthorised and not an acceptance for the purposes of the contract – thus, the plaintiffs never gave deposit required by the contract – plaintiffs' application is dismissed – obiter dictum that plaintiffs would succeed on their claim that they did not impose a condition on the delivery of the cheque, within the meaning of the relevant contractual term "unconditionally" – obiter dictum if the defendant's termination of contract had been invalid - were plaintiffs ready, willing and able to complete – defendant did not allow plaintiffs to access property to prepare compulsory valuation for financing purposes – defendant cannot then rely on its own breach of contract to terminate Legislation Cited: Bills of Exchange Act 1882 (UK) Bills of Exchange Act 1909 (Cth) Cheques Act 1986 (Cth) Cases Cited: Brien v Dwyer (1978) 141 CLR 378 Downer EDI Ltd v Gillies [2012] NSWCA 333; (2012) 92 ACSR 373 George v Cluning (1979) 28 ALR 57; [1979] ANZ ConvR 227 Grieve v Enge [2006] QCA 213; (2006) Q Conv R 54-651 Hodgson & Lee Pty Ltd v Mardonius Pty Ltd (1986) 5 NSWLR 496 Josland v Mullaley Properties Pty Ltd (1993) 6 BPR 13,285 Markson v Cutler & Anor [2007] NSWSC 1515; (2007) 13 BPR 25,127 Plumor Pty Ltd v Handley (1996) 41 NSWLR 30 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Sharjade Pty Ltd v the Commonwealth of Australia; Raaf (Landings) Ex-Servicemen Charitable Fund Pty Ltd (Formerly Darwinia Estate Pty Ltd) v Sharjade Pty Ltd [2009] NSWCA 373; (2009) 15 BPR 28,443 Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 11; (1931) 45 CLR 359 Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; (1988) 166 CLR 245 Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529 W & R Pty Ltd v Birdseye [2008] SASC 321; (2008) 102 SASR 477 Texts Cited: C Craigie, "Post-dated cheques" (1983) Australian Business Law Review 107 Peter Butt, The Standard Contract for Sale of Land in New South Wales, (2nd ed 1998, LBC Information Services) Category: Principal judgment Parties: Jun Ma (first plaintiff) Deng Wan (second plaintiff) Daphne Dawn Adams (defendant) Representation: Counsel: JA Trebeck (plaintiffs) DA Smallbone (defendant)