Betty Sbragi v Helen Barac [2014] NSWSC 404

Betty Sbragi v Helen Barac [2014] NSWSC 404

The Deed did not make time of the essence at the expiry of eight weeks; the obligation to complete did not arise immediately upon that date, and in any event, no sufficient evidence of breach or loss was presented by the defendants. The claim for damages could not be maintained under s 73 Civil Procedure Act 2005 (NSW).

Parties
Plaintiff: Betty Sbragi; First Defendant: Helen Barac; Second Defendant: Sylvia Mason
Jurisdiction
Australia
Judgment Date
01 April 2014
Procedural Posture
Notice of Motion in Equity Proceedings / Ruling on Notice of Motion Post Settlement
Outcome
Notice of motion dismissed; costs to plaintiff on indemnity basis; proceedings dismissed with no other order as to costs.
Legal Topics
Time of the Essence in Conveyancing, Construction of Settlement Deed, Breach of Contract, Damages, Jurisdiction Under Civil Procedure Act 2005 (nsw) S 73
Conveyancing Equity Civil Procedure Time of the Essence in Conveyancing Construction of Settlement Deed Breach of Contract Damages Jurisdiction Under Civil Procedure Act 2005 (nsw) S 73

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Parties

Betty Sbragi

Plaintiff

Helen Barac

First Defendant

Sylvia Mason

Second Defendant

Procedural Posture

Notice of Motion in Equity Proceedings / Ruling on Notice of Motion Post Settlement

Legal Issues

  1. 1 Whether time was of the essence for settlement under the Deed
  2. 2 Whether defendants were entitled to damages for breach of settlement terms
  3. 3 Whether section 73 Civil Procedure Act allowed damages claim for breach of settlement

Ratio Decidendi

The Deed did not make time of the essence at the expiry of eight weeks; the obligation to complete did not arise immediately upon that date, and in any event, no sufficient evidence of breach or loss was presented by the defendants. The claim for damages could not be maintained under s 73 Civil Procedure Act 2005 (NSW).

Court Disposition

Notice of motion dismissed; costs to plaintiff on indemnity basis; proceedings dismissed with no other order as to costs.

Orders

  • The defendants' notice of motion dated 23 December 2013 is to be dismissed.
  • The defendants are to pay the plaintiff's costs of the notice of motion dated 23 December 2013 on an indemnity basis.