Sarkar and Islam v Everest Property Holdings Pty Ltd [2011] NSWCA 305

Sarkar and Islam v Everest Property Holdings Pty Ltd [2011] NSWCA 305

The appellants validly terminated the contract, entitling them to a return of the deposit. Costs should be fully awarded to the appellants despite losing the occupation certificate issue, as the issues were intertwined and the appellants ultimately succeeded in their main claim. Cross-claim costs and submitting appearance costs were determined as per the parties' roles and the conduct during proceedings.

Parties
First Appellant: Mohammed Abu Sarkar; Second Appellant: Shazedul Islam; First Respondent: Everest Property Holdings Pty Ltd; Second Respondent: Lumley General Insurance Limited
Jurisdiction
Australia
Judgment Date
28 September 2011
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed; contract validly terminated; costs orders made.
Legal Topics
Vendor and Purchaser, Contract Termination, Costs Orders
Property Law Litigation Costs Vendor and Purchaser Contract Termination Costs Orders

Case Brief

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Parties

Mohammed Abu Sarkar

First Appellant

Shazedul Islam

Second Appellant

Everest Property Holdings Pty Ltd

First Respondent

Lumley General Insurance Limited

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the appellants validly terminated the contract of sale
  2. 2 Entitlement to return of deposit
  3. 3 Appropriate costs orders following appeal

Ratio Decidendi

The appellants validly terminated the contract, entitling them to a return of the deposit. Costs should be fully awarded to the appellants despite losing the occupation certificate issue, as the issues were intertwined and the appellants ultimately succeeded in their main claim. Cross-claim costs and submitting appearance costs were determined as per the parties' roles and the conduct during proceedings.

Court Disposition

Appeal allowed; contract validly terminated; costs orders made.

Orders

  • Appeal allowed.
  • Orders made by White J on 16 February 2010 are set aside.