Amaya v Estate Property Holdings Pty Ltd;Firmstone v Estate Property Holdings Pty Ltd;Abu Sarkar v Estate Property Holdings Pty Ltd [2010] NSWSC 32

Amaya v Estate Property Holdings Pty Ltd;Firmstone v Estate Property Holdings Pty Ltd;Abu Sarkar v Estate Property Holdings Pty Ltd [2010] NSWSC 32

The vendor validly terminated each contract after serving a valid occupation certificate and notices to complete, with time made of the essence. The purchasers, by their conduct and/or silence, intimated it was useless for the vendor to be ready to complete, thereby dispensing with the vendor’s necessity to be ready, willing and able. The vendor was therefore entitled to forfeit the deposit and to damages for loss of bargain.

Jurisdiction
Australia
Judgment Date
09 February 2010
Procedural Posture
Vendor and Purchaser Dispute / Principal Judgment
Outcome
Plaintiffs’ claims dismissed; judgment in favour of the vendor and Lumley General Insurance.
Legal Topics
['vendor and Purchaser' 'notice to Complete' 'occupation Certificate' 'termination of Contract' 'forfeiture of Deposit' 'damages']
['contract'] ['vendor and Purchaser' 'notice to Complete' 'occupation Certificate' 'termination of Contract' 'forfeiture of Deposit' 'damages']

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Procedural Posture

Vendor and Purchaser Dispute / Principal Judgment

Legal Issues

  1. 1 ['Whether the vendor validly terminated the contracts for breach by the purchasers' 'Whether the occupation certificate served satisfied statutory and contractual requirements' 'Whether the vendor was entitled to forfeit the deposit and/or claim damages' 'Whether the vendor needed to be ready, willing and able to complete when serving notice of termination']

Ratio Decidendi

The vendor validly terminated each contract after serving a valid occupation certificate and notices to complete, with time made of the essence. The purchasers, by their conduct and/or silence, intimated it was useless for the vendor to be ready to complete, thereby dispensing with the vendor’s necessity to be ready, willing and able. The vendor was therefore entitled to forfeit the deposit and to damages for loss of bargain.

Court Disposition

Plaintiffs’ claims dismissed; judgment in favour of the vendor and Lumley General Insurance.

Orders

  • ['Vendor validly terminated each contract; entitled to forfeit the deposits and to damages (agreed amounts).' 'Plaintiffs to pay the defendant’s costs.' 'Questions of interest and costs as between Lumley General Insurance and the plaintiffs to be argued on a date to be fixed.']