Ma v Francis [2019] NSWSC 1244

Supreme Court New South Wales

Medium Neutral Citation: Ma v Francis [2019] NSWSC 1244 Hearing dates: 10 September 2019 Date of orders: 19 September 2019 Decision date: 19 September 2019 Jurisdiction: Equity Before: Pembroke J Decision: Claim dismissed with costs Catchwords: STATUTORY CONSTRUCTION - meaning of the phrases 'offered for sale by public auction' and 'passed in' Legislation Cited: Conveyancing Act, 1919 (NSW) Category: Principal judgment Parties: Xiaoxia Ma – plaintiff Daniel Francis – first defendant Yingyin Huang – second defendant Representation: Counsel: Mrs K J Young – for the plaintiff Mr S Chapple – for the first and second defendants

Solicitors: Jurisbridge Legal – for the plaintiff Osbornes Lawyers – for the first and second defendants File Number(s): 2018/347174

Judgment

Introduction 1. This is a case about the proper construction of Section 66T(c) of the Conveyancing Act, 1919 (NSW). It concerns a contract for sale of land that is said to have been entered into between the plaintiff as vendor and the defendants as purchasers at an on-site auction on Saturday 26 May 2018. The purchase price was $5.7 million and the deposit was $570,000. On 31 May 2018, the defendants served a notice of rescission pursuant to Section 66U of the Act and sought the return of the deposit. The plaintiff contended that because of the operation of Section 66T(c), there was no 'cooling off' period entitling the defendants to exercise a right of rescission. On 14 June 2018, the plaintiff purported to terminate the contract and forfeit the deposit. 2. The factual issue that lies behind the question of statutory construction relates to the conduct of a public auction. In particular, it requires determination as to what constitutes a public auction and when a public auction takes place. It also focuses on the distinction between a property being 'withdrawn' from auction and one that is 'passed in' at auction. In order for the plaintiff to have the benefit of Section 66T(c), the contract for sale must be made 'on the same day as the property was offered for sale by public auction but passed in' (emphasis added).