Culjak v Akrawe [2022] NSWSC 949

Culjak v Akrawe [2022] NSWSC 949

The notice to complete was valid and the plaintiffs remained ready, willing and able to complete. The first defendant failed to complete by 18 March 2021, giving the plaintiffs a contractual entitlement to terminate and recover the deposit. The first defendant did not establish that his failure to complete was caused or contributed to by the plaintiffs' conduct or silence, nor that insisting on termination was unconscientious, so specific performance was unavailable. It was also not unjust or inequitable under s 55(2A) to allow the plaintiffs to retain the forfeited 10% deposit having regard to the first defendant's default and the proper function of deposits in land sale contracts.

Jurisdiction
Australia
Judgment Date
19 July 2022
Procedural Posture
Equity Proceedings Concerning a Contract for the Sale of Land, Deposit Forfeiture, Relief Against Forfeiture and Specific Performance / Principal Judgment After Hearing
Outcome
Plaintiffs entitled to recover the deposit after validly terminating the contract; first defendant's cross-claim dismissed.
Legal Topics
['contract for the Sale of Land' 'notice to Complete' 'termination for Breach' 'deposit Forfeiture' 'relief Against Forfeiture' 'specific Performance' 'conveyancing Act 1919 (nsw) S 55(2 A)']
['contracts' 'equity' 'real Property'] ['contract for the Sale of Land' 'notice to Complete' 'termination for Breach' 'deposit Forfeiture' 'relief Against Forfeiture' 'specific Performance' 'conveyancing Act 1919 (nsw) S 55(2 A)']

Case Brief

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Procedural Posture

Equity Proceedings Concerning a Contract for the Sale of Land, Deposit Forfeiture, Relief Against Forfeiture and Specific Performance / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiffs validly served a notice to complete and validly terminated the contract after the first defendant failed to complete by 18 March 2021.' 'Whether equity should relieve the first defendant against forfeiture of his interest under the contract and permit specific performance.' 'Whether the first defendant was entitled to repayment of the deposit under Conveyancing Act 1919 (NSW) s 55(2A).']

Ratio Decidendi

The notice to complete was valid and the plaintiffs remained ready, willing and able to complete. The first defendant failed to complete by 18 March 2021, giving the plaintiffs a contractual entitlement to terminate and recover the deposit. The first defendant did not establish that his failure to complete was caused or contributed to by the plaintiffs' conduct or silence, nor that insisting on termination was unconscientious, so specific performance was unavailable. It was also not unjust or inequitable under s 55(2A) to allow the plaintiffs to retain the forfeited 10% deposit having regard to the first defendant's default and the proper function of deposits in land sale contracts.

Court Disposition

Plaintiffs entitled to recover the deposit after validly terminating the contract; first defendant's cross-claim dismissed.

Orders

  • ['Declaration that the contract for sale between the plaintiffs and the first defendant was validly terminated by notice given by the plaintiffs on 22 March 2021.' 'Order that the deposit monies paid into Court be paid to the plaintiffs.' "The first defendant's cross-claim against the plaintiffs is dismissed."...