Borgese v Revolution Gosford Pty Ltd [2010] NSWSC 316

Borgese v Revolution Gosford Pty Ltd [2010] NSWSC 316

The purchasers failed to complete the contract by the specified dates, after service of a valid notice to complete making time of the essence, and after fair extensions, so the vendors were entitled under the contract and at law to validly terminate, forfeit the deposit, and be paid the deposit with accrued interest. The purchaser's unreasonable conduct in failing to authorise release of the deposit justified indemnity costs.

Parties
First Plaintiff: Vincent Borgese; Second Plaintiff: Paula Frances Borgese; First Defendant: Revolution Gosford Pty Ltd; Second Defendant: Chapman and Frazer Real Estate Pty Ltd
Jurisdiction
Australia
Judgment Date
20 April 2010
Procedural Posture
Equity Proceedings Summons for Declaratory and Monetary Relief / Judgment After Hearing (uncontested for Purchaser, Submitting Appearance for Agent)
Outcome
Declarations granted; deposit forfeited; payment of deposit and interest ordered; indemnity costs ordered against purchaser.
Legal Topics
Contract Termination, Forfeiture of Deposit, Indemnity Costs, Sale of Land, Notice to Complete
Equity Property Law Contract Termination Forfeiture of Deposit Indemnity Costs Sale of Land Notice to Complete

Case Brief

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Parties

Vincent Borgese

First Plaintiff

Paula Frances Borgese

Second Plaintiff

Revolution Gosford Pty Ltd

First Defendant

Chapman and Frazer Real Estate Pty Ltd

Second Defendant

Procedural Posture

Equity Proceedings Summons for Declaratory and Monetary Relief / Judgment After Hearing (uncontested for Purchaser, Submitting Appearance for Agent)

Legal Issues

  1. 1 Whether the vendors validly terminated the contract for sale of land
  2. 2 Whether the deposit was forfeited to the vendors
  3. 3 Whether indemnity costs should be ordered against the purchaser

Ratio Decidendi

The purchasers failed to complete the contract by the specified dates, after service of a valid notice to complete making time of the essence, and after fair extensions, so the vendors were entitled under the contract and at law to validly terminate, forfeit the deposit, and be paid the deposit with accrued interest. The purchaser's unreasonable conduct in failing to authorise release of the deposit justified indemnity costs.

Court Disposition

Declarations granted; deposit forfeited; payment of deposit and interest ordered; indemnity costs ordered against purchaser.

Orders

  • Declaration that the contract between plaintiffs and first defendant has been validly terminated.
  • Declaration that the deposit of $56,500 paid pursuant to the contract has been forfeited to the plaintiffs.