Liew & Anor v Barthelmess & Ors [2024] NSWDC 344

Liew & Anor v Barthelmess & Ors [2024] NSWDC 344

The contracts, properly construed, required a single aggregate deposit of $740,000 (5% of $14.8 million) payable in three instalments not tied to individual lots. The purchasers failed to pay the third instalment ($340,000) by the contractual deadline, which was an essential term. This breach entitled the vendors to terminate all three interdependent contracts and retain instalments already paid, as clause 48 was not penal and took precedence over amounts stated on the covers. Purchasers are jointly and severally liable for the balance.

Parties
First Plaintiff/first Cross Defendant (purchaser): Ms Liz Yuman Liew; Second Plaintiff/second Cross Defendant (purchaser): Ms Lihua Wu; First Defendant/first Cross Claimant (vendor): Mr Jonathan Joshua Barthelmess; Second Defendant/second Cross Claimant (vendor): Ms Laurette Ruth Macsween; Third Defendant/third Cross Claimant (vendor): Ms Prudence Gai Macsween
Jurisdiction
Australia
Judgment Date
13 August 2024
Procedural Posture
Civil / Principal Judgment After Hearing and Cross Claim
Outcome
Judgment for the defendants on the claim and cross-claim; purchasers' claim dismissed; orders for release of monies and for debt against plaintiffs.
Legal Topics
Deposit in Contracts for Sale of Land, Construction of Contracts, Termination and Repudiation, Penalty Clauses, Restitution, Estoppel by Convention
Land Law Contracts Estoppel Deposit in Contracts for Sale of Land Construction of Contracts Termination and Repudiation Penalty Clauses Restitution +1 more

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Parties

Ms Liz Yuman Liew

First Plaintiff/first Cross Defendant (purchaser)

Ms Lihua Wu

Second Plaintiff/second Cross Defendant (purchaser)

Mr Jonathan Joshua Barthelmess

First Defendant/first Cross Claimant (vendor)

Ms Laurette Ruth Macsween

Second Defendant/second Cross Claimant (vendor)

Ms Prudence Gai Macsween

Third Defendant/third Cross Claimant (vendor)

Procedural Posture

Civil / Principal Judgment After Hearing and Cross Claim

Legal Issues

  1. 1 Whether the vendors validly terminated the three contracts based on non-payment of the third deposit instalment
  2. 2 Proper construction of clause 48 of the contracts concerning the deposit
  3. 3 Whether the deposit clause is unenforceable as a penalty

Ratio Decidendi

The contracts, properly construed, required a single aggregate deposit of $740,000 (5% of $14.8 million) payable in three instalments not tied to individual lots. The purchasers failed to pay the third instalment ($340,000) by the contractual deadline, which was an essential term. This breach entitled the vendors to terminate all three interdependent contracts and retain instalments already paid, as clause 48 was not penal and took precedence over amounts stated on the covers. Purchasers are jointly and severally liable for the balance.

Court Disposition

Judgment for the defendants on the claim and cross-claim; purchasers' claim dismissed; orders for release of monies and for debt against plaintiffs.

Orders

  • The Statement of Claim is dismissed.
  • The sum of $400,000 paid by the plaintiffs into the defendants' agent's trust account is to be released to the defendants.