Hong v Gui [2022] NSWSC 431

Hong v Gui [2022] NSWSC 431

The vendor's failure to provide the required land tax certificates meant the purchaser was not obliged to settle. However, the vendor's mistaken termination in August 2020 did not amount to repudiation, as it was based on a bona fide error and a willingness to comply if corrected. The purchaser was not entitled to terminate for repudiation, and being unable to complete herself, could not otherwise terminate for non-performance. The vendor subsequently fulfilled the statutory requirement and properly terminated after the purchaser again failed to complete, entitling him to the deposit balance and interest.

Parties
Plaintiff/cross Defendant: Lihong Hong; First Defendant/cross Claimant: Ke Gui; Second Defendant: Khattar Group International Pty Ltd
Jurisdiction
Australia
Judgment Date
12 April 2022
Procedural Posture
Equity Proceeding – Real Property Dispute / Judgment After a Trial/hearing
Outcome
Plaintiff's claim dismissed; cross-claimant succeeds for deposit balance and interest; plaintiff to pay costs.
Legal Topics
Land Tax Certificates in Conveyancing, Contract for Sale – Termination and Repudiation, Settlement Requirements in NSW, Vendor and Purchaser Obligations Under Contract, Requirement to Provide Land Tax Certificate Prior to Completion
Equity Land Law Contract Law Land Tax Certificates in Conveyancing Contract for Sale – Termination and Repudiation Settlement Requirements in NSW Vendor and Purchaser Obligations Under Contract Requirement to Provide Land Tax Certificate Prior to Completion

Case Brief

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Parties

Lihong Hong

Plaintiff/cross Defendant

Ke Gui

First Defendant/cross Claimant

Khattar Group International Pty Ltd

Second Defendant

Procedural Posture

Equity Proceeding – Real Property Dispute / Judgment After a Trial/hearing

Legal Issues

  1. 1 Whether the vendor was entitled to terminate the contract for sale on 24 August 2020
  2. 2 Whether the purchaser's failure to complete constituted anticipatory breach or repudiation
  3. 3 Whether the purchaser was entitled to terminate the contract for repudiation by the vendor

Ratio Decidendi

The vendor's failure to provide the required land tax certificates meant the purchaser was not obliged to settle. However, the vendor's mistaken termination in August 2020 did not amount to repudiation, as it was based on a bona fide error and a willingness to comply if corrected. The purchaser was not entitled to terminate for repudiation, and being unable to complete herself, could not otherwise terminate for non-performance. The vendor subsequently fulfilled the statutory requirement and properly terminated after the purchaser again failed to complete, entitling him to the deposit balance and interest.

Court Disposition

Plaintiff's claim dismissed; cross-claimant succeeds for deposit balance and interest; plaintiff to pay costs.

Orders

  • Plaintiff's claim is dismissed.
  • Defendant and cross-claimant succeeds on cross-claim for balance of deposit and interest.