Issa v Osman (No.2) [2017] NSWSC 663

Supreme Court New South Wales

Medium Neutral Citation: Issa v Osman (No.2) [2017] NSWSC 663 Hearing dates: 7 April 2016, 30 January 2017, 31 January 2017, 1 February 2017 Date of orders: 08 June 2017 Decision date: 08 June 2017 Jurisdiction: Common Law Before: Garling J Decision: (1) A declaration that the Contract for Sale of Land dated 20 April 2015 between the plaintiffs as vendors and the first defendant as purchaser of the land described in Folio/Identifier 1/514917 and known as 29 Boronia Road, Glenorie NSW 2147, has been validly and lawfully terminated. (2) Order that the second defendant remove the caveat AK182112 from the title of the property described in (1) above by 4pm Thursday 15 June 2017. (3) Order that the first cross-claim be dismissed. (4) Order that the second cross-claim be dismissed. (5) Order that the defendants pay the costs of the plaintiffs. (6) Stand over the issue of an inquiry as to damages until 9.30am on 15 June 2017 for directions. Catchwords: CONTRACTS – contract for sale of land containing option to purchase Property – option never exercised by defendants – whether valid termination by plaintiffs possible where second defendant remained in possession of Property – whether possession barrier to plaintiffs being ready, willing and able to complete – no barrier – termination effective CONTRACTS – whether implied term that purchase subject to purchaser obtaining finance – implied term inconsistent with express terms of contract – implied term not so obvious that it goes without saying – no implied term PRACTICE AND PROCEDURE – whether second defendant represented by particular solicitor – second defendant denied retainer of solicitor for the conveyance ESTOPPEL – whether plaintiffs estopped from issuing Notices to Complete to first defendant – first defendant claimed plaintiffs made representation that he would be granted extensions of time –– no such representation – specific contractual provisions contrary to asserted representation – unilateral assumption by first defendant EQUITY – whether "common intention" or joint endeavour constructive trust arose from renovations made by second defendant to Property – renovations completed with intention that second defendant would purchase Property – Property never purchased – no common intention or joint endeavour – not unconscionable for plaintiffs to retain benefit of renovations – no evidence to determine value of renovations – no constructive trust Legislation Cited: Legal Profession Uniform Law (NSW) No.16(a) Cases Cited: B.P. Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266; (1977) 52 ALJR 20 Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (In Liq) [2016] NSWCA 165 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 Daniel Behman v Tarek Behman [2015] NSWSC 1787 Donaldson v Natural Springs Australia Ltd [2015] FCA 498 Donis v Donis (2007) 19 VR 577 Heimann v Commonwealth (1938) 38 SR (NSW) 691 Johnson Matthey v AC Rochester Overseas Corp (1990) 23 NSWLR 190 Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406 Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 Peters American Delicacy Co Ltd v Champion [1928] HCA 27; (1928) 41 CLR 316. Servcorp WA Pty Ltd v Perron Investments Pty Ltd [2016] WASCA 79; (2016) 5 WAR 226 Shepherd v Doolan & Ors [2005] NSWSC 42 Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 Texts Cited: Jacobs Law of Trusts in Australia (7th Ed) Category: Principal judgment Parties: Peter Issa (P1) Eva Mary Issa (P2) Youssef Osman (D1) Mohamed Khaled Osman (D2) Representation: Counsel: J O'Connor (P1, P2) M Mando (D1) J Young (D2)