Alexakis v Wan [2021] NSWSC 367

Alexakis v Wan [2021] NSWSC 367

Additional Condition 38 required payment of the second instalment during the calendar month from 5 July 2019 to 4 August 2019. The contract disclosed no contrary intention to displace the statutory meaning of "month", and cl 21.5 did not extend time because the payment was a deposit payment governed by cl 2, where time was essential. The plaintiff's failure to pay by 4 August 2019 was an essential breach, entitling the defendants to terminate on 5 August 2019 and recover the deposit. Although the plaintiff mistakenly believed payment could be made later, that mistake was not caused or contributed to by the defendants, the breach was serious, and reliance on termination and forfeiture of a...

Jurisdiction
Australia
Judgment Date
12 April 2021
Procedural Posture
Equity Proceedings for Specific Performance of a Contract for Sale of Land, With Cross Claim for Recovery of Deposit and Withdrawal of Caveat / Principal Judgment After Hearing
Outcome
Plaintiff's claim dismissed; defendants succeeded on the cross-claim and were held entitled to terminate the contract and recover the deposit.
Legal Topics
['contract for Sale of Land' 'construction of Deposit Instalment Clause' 'calendar Month' 'termination for Essential Breach' 'specific Performance' 'relief Against Forfeiture' 'return of Deposit Under Conveyancing Act 1919 (nsw) S 55(2 A)' 'caveat Withdrawal']
['land Law' 'equity' 'contract Law'] ['contract for Sale of Land' 'construction of Deposit Instalment Clause' 'calendar Month' 'termination for Essential Breach' 'specific Performance' 'relief Against Forfeiture' 'return of Deposit Under Conveyancing Act 1919 (nsw) S 55(2 A)' 'caveat Withdrawal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceedings for Specific Performance of a Contract for Sale of Land, With Cross Claim for Recovery of Deposit and Withdrawal of Caveat / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Additional Condition 38 required the second instalment of the deposit to be paid by 4 August 2019, by 5 August 2019, or by 31 August 2019.' 'Whether cl 21.5 extended the time for payment because 4 August 2019 was not a business day.' 'Whether the defendants validly terminated the contract on 5 August 2019 for failure to pay the second instalment of the deposit.' 'Whether equity should relieve the plaintiff from the consequences of termination and permit specific performance.' 'Whether the plaintiff should obtain return of the deposit under s 55(2A) of the Conveyancing Act 1919 (NSW).' 'Whether the defendants were entitled to recover the deposit and require withdrawal of the caveat.']

Ratio Decidendi

Additional Condition 38 required payment of the second instalment during the calendar month from 5 July 2019 to 4 August 2019. The contract disclosed no contrary intention to displace the statutory meaning of "month", and cl 21.5 did not extend time because the payment was a deposit payment governed by cl 2, where time was essential. The plaintiff's failure to pay by 4 August 2019 was an essential breach, entitling the defendants to terminate on 5 August 2019 and recover the deposit. Although the plaintiff mistakenly believed payment could be made later, that mistake was not caused or contributed to by the defendants, the breach was serious, and reliance on termination and forfeiture of a...

Court Disposition

Plaintiff's claim dismissed; defendants succeeded on the cross-claim and were held entitled to terminate the contract and recover the deposit.

Orders

  • ["The plaintiff/cross-defendant's Statement of Claim is dismissed." 'The plaintiff/cross-defendant must authorise and instruct the agent to release to the defendants/cross-claimants the sums totalling $241,500 paid to the agent, together with any interest earned on those sums.' 'Liberty to apply is reserved in...