Karfoal Pty Ltd v Lorence [2002] NSWSC 284

Karfoal Pty Ltd v Lorence [2002] NSWSC 284

Because all assets the subject of the contract were held by the deceased and the defendant as joint tenants, title vested in the defendant by survivorship on the deceased's death and there was no impediment to her completing the contract. Special condition 10 was directed to a death or similar event creating an impediment to fulfilment of contractual obligations and was not enlivened. The plaintiff therefore was not entitled to rescind, failed to complete, and the defendant was entitled under the contract to terminate and forfeit the deposit. It was not unjust or inequitable under Conveyancing Act 1919 (NSW) s 55(2A) to allow the defendant to retain the deposit.

Jurisdiction
Australia
Judgment Date
11 April 2002
Procedural Posture
Proceeding Concerning Rescission of a Contract for Sale of Land and Return of Deposit / Judgment After Hearing
Outcome
Plaintiff was not entitled to rescind or recover the deposit; defendant was entitled to terminate the contract and forfeit the deposit. Leave to further amend the summons to include a claim for damages was to be granted subject to a costs condition.
Legal Topics
['contract for Sale of Land' 'notice to Complete' 'time of the Essence' 'joint Tenancy and Survivorship' "hotelier's Licence Transfer" 'answers to Requisitions' 'rescission' 'forfeiture of Deposit' 'relief Under Conveyancing Act 1919 (nsw) S 55(2 A)' 'leave to Amend Summons']
['contract Law' 'property Law' 'conveyancing' 'partnership Law' 'liquor Licensing'] ['contract for Sale of Land' 'notice to Complete' 'time of the Essence' 'joint Tenancy and Survivorship' "hotelier's Licence Transfer" 'answers to Requisitions' 'rescission' 'forfeiture of Deposit' 'relief Under Conveyancing Act 1919 (nsw) S 55(2 A)' 'leave to Amend Summons']

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Procedural Posture

Proceeding Concerning Rescission of a Contract for Sale of Land and Return of Deposit / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant was entitled to give a notice to complete making time of the essence after the death of the other vendor.' 'Whether the death of one joint tenant vendor entitled the plaintiff to rescind under special condition 10 of the contract for sale.' "Whether the defendant could deal with the hotelier's licence so as to comply with special condition 14 by the time appointed for completion." "Whether the defendant's answers to requisitions were inadequate so as to put her in default." 'Whether the defendant was entitled to terminate the contract and forfeit the deposit.' 'Whether the plaintiff should obtain repayment of the deposit under Conveyancing Act 1919 (NSW) s 55(2A).' 'Whether leave should be granted to further amend the summons to include a claim for damages.']

Ratio Decidendi

Because all assets the subject of the contract were held by the deceased and the defendant as joint tenants, title vested in the defendant by survivorship on the deceased's death and there was no impediment to her completing the contract. Special condition 10 was directed to a death or similar event creating an impediment to fulfilment of contractual obligations and was not enlivened. The plaintiff therefore was not entitled to rescind, failed to complete, and the defendant was entitled under the contract to terminate and forfeit the deposit. It was not unjust or inequitable under Conveyancing Act 1919 (NSW) s 55(2A) to allow the defendant to retain the deposit.

Court Disposition

Plaintiff was not entitled to rescind or recover the deposit; defendant was entitled to terminate the contract and forfeit the deposit. Leave to further amend the summons to include a claim for damages was to be granted subject to a costs condition.

Orders

  • ["The plaintiff must pay the defendant's costs of the present hearing." 'Leave to further amend the summons to include a claim for damages was to be granted on the condition that the plaintiff bear the costs in any event of any inquiry as to damages.' 'The parties were directed to bring in short minutes of orders to...