Mulkearns v Chandos Developments Pty Ltd (No 3) [2005] NSWSC 504

Mulkearns v Chandos Developments Pty Ltd (No 3) [2005] NSWSC 504

Evidence of the purchaser's conduct in unrelated previous transactions is not relevant to the determination of relief against forfeiture of deposit or instalments under s 55(2A) Conveyancing Act 1919 and common law principles, nor to equitable compensation for improvements. The motion to reopen and adduce further evidence is dismissed.

Parties
Plaintiff: Anthony Michael Mulkearns; Plaintiff: High Forest Estate Pty Ltd; Plaintiff: Leverage Australia; Defendant: Chandos Developments Pty Ltd
Jurisdiction
Australia
Judgment Date
30 May 2005
Procedural Posture
Equity Proceeding / Determination of Defendant's Notice of Motion to Reopen Case and Adduce Further Evidence
Outcome
Motion dismissed
Legal Topics
Breach of Contract, Relief Against Forfeiture, Recovery of Deposit, Conveyancing
Equity Property Law Breach of Contract Relief Against Forfeiture Recovery of Deposit Conveyancing

Case Brief

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Parties

Anthony Michael Mulkearns

Plaintiff

High Forest Estate Pty Ltd

Plaintiff

Leverage Australia

Plaintiff

Chandos Developments Pty Ltd

Defendant

Procedural Posture

Equity Proceeding / Determination of Defendant's Notice of Motion to Reopen Case and Adduce Further Evidence

Legal Issues

  1. 1 Whether it is relevant to consider purchaser's conduct in unrelated previous transactions when exercising discretion to return deposit or relieve against forfeiture
  2. 2 Whether late application to adduce new evidence should be permitted
  3. 3 Relevance of purchaser's history of defaulting on land contracts

Ratio Decidendi

Evidence of the purchaser's conduct in unrelated previous transactions is not relevant to the determination of relief against forfeiture of deposit or instalments under s 55(2A) Conveyancing Act 1919 and common law principles, nor to equitable compensation for improvements. The motion to reopen and adduce further evidence is dismissed.

Court Disposition

Motion dismissed

Orders

  • Costs of the motion to be costs in the cause