Bieri v Ottoman Enterprises Pty Ltd as trustee for Yucel Family Trust [2015] NSWSC 563

Bieri v Ottoman Enterprises Pty Ltd as trustee for Yucel Family Trust [2015] NSWSC 563

The vendor did not terminate the contract because no notice of termination was served and the correspondence merely reserved or asserted an entitlement to terminate. The notice to complete was not self-executing, the Bank taking possession did not affect the parties' contract, and the purchaser's vacation did not itself terminate the contract. Consequently the vendor's contractual and general law entitlements dependent on termination, including retaining the deposit and recovering damages, did not arise; the purchaser was entitled to return of the deposit.

Jurisdiction
Australia
Judgment Date
12 May 2015
Procedural Posture
Equity Division Proceedings Concerning a Contract for Sale of Land / Principal Judgment
Outcome
Contract not terminated by the vendor before the purchaser's purported termination; purchaser entitled to return of deposit; vendor not entitled to retain deposit or recover damages.
Legal Topics
['contract for Sale of Land' 'notice to Complete' 'termination' 'repudiation' 'deposit' 'mortgagee in Possession' 'personal Guarantee']
['contract' 'property' 'equity'] ['contract for Sale of Land' 'notice to Complete' 'termination' 'repudiation' 'deposit' 'mortgagee in Possession' 'personal Guarantee']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning a Contract for Sale of Land / Principal Judgment

Legal Issues

  1. 1 ["Whether the vendor terminated the contract before the purchaser's purported termination on 7 April 2014." 'Whether the notice to complete had a self-executing terminating effect if settlement did not occur by 29 August 2011.' 'Whether the Bank taking possession of the property terminated or affected the contract between vendor and purchaser.' 'Whether the purchaser vacating the property brought about or evidenced termination of the contract.' 'Whether the vendor was entitled to retain the deposit or recover damages.' 'Whether Special Condition 13 imposed personal liability on Mr Yucel.']

Ratio Decidendi

The vendor did not terminate the contract because no notice of termination was served and the correspondence merely reserved or asserted an entitlement to terminate. The notice to complete was not self-executing, the Bank taking possession did not affect the parties' contract, and the purchaser's vacation did not itself terminate the contract. Consequently the vendor's contractual and general law entitlements dependent on termination, including retaining the deposit and recovering damages, did not arise; the purchaser was entitled to return of the deposit.

Court Disposition

Contract not terminated by the vendor before the purchaser's purported termination; purchaser entitled to return of deposit; vendor not entitled to retain deposit or recover damages.

Orders

  • ['The parties were invited to bring in short minutes to give effect to the reasons.']