Mammadova v Rose [2010] NSWSC 1456

Mammadova v Rose [2010] NSWSC 1456

The first defendant failed to complete after service of an effective notice to complete, while the plaintiff was ready, willing and able to complete. The plaintiff was not responsible for the first defendant's inability to obtain finance or for any assurances given by the first defendant's broker or solicitor. There was no basis to challenge the termination and no inequity warranting relief against forfeiture, so the plaintiff was entitled to forfeit and receive the $15,600 deposit and accrued interest.

Jurisdiction
Australia
Judgment Date
03 December 2010
Procedural Posture
Vendor and Purchaser Summons / Ex Tempore Principal Judgment
Outcome
Plaintiff granted declarations and orders for forfeiture and payment of the deposit; summons otherwise dismissed save as to costs; first defendant ordered to pay the plaintiff's costs.
Legal Topics
['vendor and Purchaser' 'contract for Sale of Land' 'notice to Complete' 'termination of Contract' 'forfeiture of Deposit' 'relief Against Forfeiture']
['property Law' 'contract Law' 'equity'] ['vendor and Purchaser' 'contract for Sale of Land' 'notice to Complete' 'termination of Contract' 'forfeiture of Deposit' 'relief Against Forfeiture']

Case Brief

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Procedural Posture

Vendor and Purchaser Summons / Ex Tempore Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff validly terminated the contract for sale after the first defendant failed to complete.' 'Whether the plaintiff was entitled to forfeiture and release of the deposit held by the second defendant.' "Whether the first defendant's failure to obtain finance, allegedly because of assurances from her broker and solicitor, answered the plaintiff's claim or supported relief against forfeiture."]

Ratio Decidendi

The first defendant failed to complete after service of an effective notice to complete, while the plaintiff was ready, willing and able to complete. The plaintiff was not responsible for the first defendant's inability to obtain finance or for any assurances given by the first defendant's broker or solicitor. There was no basis to challenge the termination and no inequity warranting relief against forfeiture, so the plaintiff was entitled to forfeit and receive the $15,600 deposit and accrued interest.

Court Disposition

Plaintiff granted declarations and orders for forfeiture and payment of the deposit; summons otherwise dismissed save as to costs; first defendant ordered to pay the plaintiff's costs.

Orders

  • ['Declare that the contract for sale of the land made between the plaintiff as vendor and the first defendant as purchaser on 22 September 2009 in respect of the whole of the land comprised in Folio Identifier 1/SP19567 has been validity terminated by the plaintiff.' 'Declare that the plaintiff is entitled to...