Jason Warren Baird v Tony Chambers [2010] NSWSC 272

Jason Warren Baird v Tony Chambers [2010] NSWSC 272

Relief under s 55(2A) was refused because, although the plaintiffs were likely to resell the property for $25,000 more than the original price, completion of the resale had not occurred, any profit was uncertain and small, and the defendants were not able to provide the certain settlement by 15 April for which the plaintiffs had bargained. The defendants' ability to settle remained uncertain even after termination, so it was not unjust or unequitable to allow the plaintiffs to retain the deposit.

Jurisdiction
Australia
Judgment Date
16 June 2010
Procedural Posture
Equity Division Proceedings Concerning Forfeiture of a Deposit Under a Contract for Sale of Land and a Cross Claim Under S 55(2 A) of the Conveyancing Act 1919 / Principal Judgment After Hearing
Outcome
The plaintiffs obtained declarations and an order for payment of the deposit; the first and second defendants' cross-claim was dismissed with costs.
Legal Topics
['forfeiture of Deposit' 'contract for Sale of Land' 'notice to Complete' 'termination' 'relief Under S 55(2 A) of the Conveyancing Act 1919']
['conveyancing' 'contract Law' 'equity'] ['forfeiture of Deposit' 'contract for Sale of Land' 'notice to Complete' 'termination' 'relief Under S 55(2 A) of the Conveyancing Act 1919']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Forfeiture of a Deposit Under a Contract for Sale of Land and a Cross Claim Under S 55(2 A) of the Conveyancing Act 1919 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the contract of sale of land between the plaintiffs as vendors and the first and second defendants as purchasers had been validly terminated.' 'Whether the deposit paid under the contract should be forfeited to the plaintiffs or repaid to the defendants under s 55(2A) of the Conveyancing Act 1919.' 'Whether it would be unjust or unequitable to allow the plaintiffs to retain the deposit.']

Ratio Decidendi

Relief under s 55(2A) was refused because, although the plaintiffs were likely to resell the property for $25,000 more than the original price, completion of the resale had not occurred, any profit was uncertain and small, and the defendants were not able to provide the certain settlement by 15 April for which the plaintiffs had bargained. The defendants' ability to settle remained uncertain even after termination, so it was not unjust or unequitable to allow the plaintiffs to retain the deposit.

Court Disposition

The plaintiffs obtained declarations and an order for payment of the deposit; the first and second defendants' cross-claim was dismissed with costs.

Orders

  • ['Declaration that the contract of sale of land between the plaintiffs as vendors and the first and second defendants as purchasers has been validly terminated.' 'Declaration that the deposit of $125,000 paid pursuant to that contract has been forfeited by the purchaser.' 'Order that the third defendant pay to the...