Golding v Vella [2001] NSWSC 567

Golding v Vella [2001] NSWSC 567

The defendants were not entitled to refuse to complete or terminate because the plaintiff was ready, willing and able to complete on 18 June 1999, the PC items were being installed on the settlement day, the defendants had acquiesced in deferral of the fencing, and the remaining complaints did not form part of the contract or justify termination. Their purported termination was therefore a wrongful repudiation which the plaintiff validly accepted by notice dated 23 June 1999. Although the plaintiff's contractual right to recover the unpaid deposit existed, relief under s.55(2A) was appropriate because the contract was made on 20 April 1999, the defendants' cooling off withdrawal was...

Jurisdiction
Australia
Judgment Date
09 July 2001
Procedural Posture
Equity Proceedings Concerning Termination of a Contract for Sale of Land, Deposit Forfeiture Relief and Damages / Final Judgment After Trial
Outcome
Plaintiff obtained declaration of valid termination and damages, but defendants obtained relief against forfeiture of the deposit and repayment of the amount paid.
Legal Topics
['contract for Sale of Land' 'notice to Complete' 'wrongful Repudiation' 'deposit Forfeiture' 'relief Under S.55(2 A) Conveyancing Act 1919' 'cooling Off Provisions' 'exchange of Contracts by Real Estate Salesperson' 'readiness, Willingness and Ability to Complete']
['conveyancing' 'contract Law' 'equity'] ['contract for Sale of Land' 'notice to Complete' 'wrongful Repudiation' 'deposit Forfeiture' 'relief Under S.55(2 A) Conveyancing Act 1919' 'cooling Off Provisions' 'exchange of Contracts by Real Estate Salesperson' 'readiness, Willingness and Ability to Complete']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Termination of a Contract for Sale of Land, Deposit Forfeiture Relief and Damages / Final Judgment After Trial

Legal Issues

  1. 1 ['Whether the defendants validly terminated the contract, including whether the plaintiff was ready, willing and able to complete on 18 June 1999, whether the plaintiff was in breach of any essential term, and whether compliance with fencing before completion was waived.' "If the defendants did not validly terminate, whether the plaintiff validly terminated based on the defendants' purported termination." 'If the plaintiff validly terminated, whether the defendants could resist forfeiture of the deposit by virtue of s.55(2A) of the Conveyancing Act 1919.' 'The amount of damages to which the plaintiff was entitled.' 'Whether the contract was made on 19 April 1999 or 20 April 1999 for the purposes of the cooling off provisions.']

Ratio Decidendi

The defendants were not entitled to refuse to complete or terminate because the plaintiff was ready, willing and able to complete on 18 June 1999, the PC items were being installed on the settlement day, the defendants had acquiesced in deferral of the fencing, and the remaining complaints did not form part of the contract or justify termination. Their purported termination was therefore a wrongful repudiation which the plaintiff validly accepted by notice dated 23 June 1999. Although the plaintiff's contractual right to recover the unpaid deposit existed, relief under s.55(2A) was appropriate because the contract was made on 20 April 1999, the defendants' cooling off withdrawal was...

Court Disposition

Plaintiff obtained declaration of valid termination and damages, but defendants obtained relief against forfeiture of the deposit and repayment of the amount paid.

Orders

  • ['Declare that the contract for sale of land dated 19 April 1999 in respect of the property comprised in Folio Identifier 9/870539 between the plaintiff as vendor and the defendants as purchasers was validly terminated by the plaintiff by notice of termination dated 23 June 1999.' 'Order that the plaintiff repay to...