Parkes v Mamo [2016] NSWSC 1129

Parkes v Mamo [2016] NSWSC 1129

The vendor accepted the Deposit Power Guarantee for the deposit within the meaning of clause 2.6, with the consequence that clauses 2.1 to 2.5 concerning payment of the deposit did not apply and no other provision imposed an obligation on the purchasers to pay or renew the deposit after the guarantee expired. The purchasers were therefore not in breach by failing to provide a replacement guarantee or cash deposit, the vendor's purported termination was invalid and of no effect, and the contract remained on foot. The plaintiffs had not repudiated or abandoned the contract and were ready, willing and able to perform, so specific performance was appropriate.

Jurisdiction
Australia
Judgment Date
16 August 2016
Procedural Posture
Summons for Specific Performance of a Contract for Sale of Land; Cross Summons for Payment of the Deposit / Principal Judgment After Hearing
Outcome
Orders made for specific performance of the contract for sale of land; the vendor's Cross-Summons dismissed; defendant ordered to pay the plaintiffs' costs.
Legal Topics
['contract for Sale of Land' 'deposit Bond or Guarantee' 'termination for Failure to Pay Deposit' 'specific Performance' 'repudiation' 'abandonment' 'readiness, Willingness and Ability to Perform']
['conveyancing' 'equity' 'contract Law'] ['contract for Sale of Land' 'deposit Bond or Guarantee' 'termination for Failure to Pay Deposit' 'specific Performance' 'repudiation' 'abandonment' 'readiness, Willingness and Ability to Perform']

Case Brief

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Procedural Posture

Summons for Specific Performance of a Contract for Sale of Land; Cross Summons for Payment of the Deposit / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the vendor's acceptance of the Deposit Power Guarantee for the deposit meant that clauses 2.1 to 2.5 of the contract did not apply." 'Whether the purchasers became obliged to pay the deposit when the Deposit Power Guarantee expired before completion.' 'Whether the vendor validly terminated the contract on 11 January 2016 for alleged default concerning the deposit.' "Whether the purchasers' conduct amounted to repudiation or abandonment of the contract." 'Whether the purchasers were ready, willing and able to perform their essential contractual obligations so as to obtain specific performance.']

Ratio Decidendi

The vendor accepted the Deposit Power Guarantee for the deposit within the meaning of clause 2.6, with the consequence that clauses 2.1 to 2.5 concerning payment of the deposit did not apply and no other provision imposed an obligation on the purchasers to pay or renew the deposit after the guarantee expired. The purchasers were therefore not in breach by failing to provide a replacement guarantee or cash deposit, the vendor's purported termination was invalid and of no effect, and the contract remained on foot. The plaintiffs had not repudiated or abandoned the contract and were ready, willing and able to perform, so specific performance was appropriate.

Court Disposition

Orders made for specific performance of the contract for sale of land; the vendor's Cross-Summons dismissed; defendant ordered to pay the plaintiffs' costs.

Orders

  • ['Declare that the Notice of Termination of Contract dated 11 January 2016 given by the defendant to the plaintiffs in respect of the contract for the sale of land dated 30 June 2015 is invalid and of no effect.' 'Declare that the said contract be specifically performed and carried into effect.' 'Order that the...