Akrawe v Culjak [2023] NSWCA 171

Akrawe v Culjak [2023] NSWCA 171

The appeal was dismissed because the appellant did not establish factual error in the primary judge's findings. It was inherently plausible that the respondents kept open the possibility of agreeing to a course other than completion under the original contract, while continuing to rely on the Notice to Complete; the contrary finding sought by the appellant was implausible and not squarely put to the vendors. There was no direct evidence that the appellant would have completed by 18 March 2021 if told differently, and the evidence of available funds was contradictory, confusing and not cogent. The respondents' termination was therefore not shown to be unconscientious, and no House v The...

Jurisdiction
Australia
Judgment Date
27 July 2023
Procedural Posture
Appeal From the Supreme Court of New South Wales, Equity Division, Concerning Specific Performance, Termination of a Land Sale Contract and Return of Deposit / Appeal Dismissed With Costs
Outcome
Appeal dismissed with costs.
Legal Topics
['specific Performance of Contract for Sale of Land' 'relief Against Forfeiture of Deposit' 'notice to Complete' 'termination of Contract' 'appeal From Exercise of Discretion' 'conveyancing Act 1919 (nsw), S 55(2 A)']
['equity' 'property Law' 'contract Law' 'civil Procedure'] ['specific Performance of Contract for Sale of Land' 'relief Against Forfeiture of Deposit' 'notice to Complete' 'termination of Contract' 'appeal From Exercise of Discretion' 'conveyancing Act 1919 (nsw), S 55(2 A)']

Case Brief

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Procedural Posture

Appeal From the Supreme Court of New South Wales, Equity Division, Concerning Specific Performance, Termination of a Land Sale Contract and Return of Deposit / Appeal Dismissed With Costs

Legal Issues

  1. 1 ['Whether the primary judge erred in declining to order specific performance of the contract for the sale of land.' 'Whether the respondents validly terminated the contract after the appellant failed to complete in accordance with the Notice to Complete.' 'Whether the appellant was ready, willing and able to complete the purchase.' "Whether the primary judge made material factual errors concerning whether the respondents had decided by 11 March 2021 not to proceed with a new contract with the appellant's son." 'Whether the primary judge made appellable error in refusing return of the deposit under s 55(2A) of the Conveyancing Act 1919 (NSW).']

Ratio Decidendi

The appeal was dismissed because the appellant did not establish factual error in the primary judge's findings. It was inherently plausible that the respondents kept open the possibility of agreeing to a course other than completion under the original contract, while continuing to rely on the Notice to Complete; the contrary finding sought by the appellant was implausible and not squarely put to the vendors. There was no direct evidence that the appellant would have completed by 18 March 2021 if told differently, and the evidence of available funds was contradictory, confusing and not cogent. The respondents' termination was therefore not shown to be unconscientious, and no House v The...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']