Ari v Decevic [2013] NSWSC 1967

Ari v Decevic [2013] NSWSC 1967

The vendor, Mr Ari, validly terminated the contract after the purchaser, Mrs Decevic, failed to complete due to lack of finance. Although the property was not vacant on the original completion date, Mrs Decevic had waived her right to object, and her failure to complete was not caused by the absence of vacant possession. Under the contract and existing authorities, Mr Ari was entitled to recover the deposit. There were no grounds to exercise the discretion under Conveyancing Act 1919 s 55(2A) to relieve Mrs Decevic from the obligation to pay the deposit. On the cross-claim, there was no binding loan agreement requiring the bank to provide finance because the Decevics did not comply with...

Parties
Plaintiff: Leon Ari; Defendant/cross Claimant: Tania Decevic; Cross Defendant: Westpac Banking Corporation
Jurisdiction
Australia
Judgment Date
24 December 2013
Procedural Posture
Principal Judgment / Trial
Outcome
Plaintiff successful against the defendant for the value of the deposit. Bank obtains judgment against cross-claimant. Directions made for costs argument.
Legal Topics
Contracts for the Sale of Land, Deposit Bonds, Termination of Contract, Vendor and Purchaser Rights, Waiver of Breach, Court Discretion to Refund Deposit, Loan Agreements, Bank Liability
Contract Law Contracts for the Sale of Land Deposit Bonds Termination of Contract Vendor and Purchaser Rights Waiver of Breach Court Discretion to Refund Deposit Loan Agreements +1 more

Case Brief

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Parties

Leon Ari

Plaintiff

Tania Decevic

Defendant/cross Claimant

Westpac Banking Corporation

Cross Defendant

Procedural Posture

Principal Judgment / Trial

Legal Issues

  1. 1 Whether the plaintiff validly terminated the contract for sale of land and is entitled to recover the deposit
  2. 2 Whether the defendant is entitled to relief from forfeiture under Conveyancing Act 1919, s 55(2A)
  3. 3 Whether there was a binding loan agreement between the defendant and the bank obliging the bank to provide finance

Ratio Decidendi

The vendor, Mr Ari, validly terminated the contract after the purchaser, Mrs Decevic, failed to complete due to lack of finance. Although the property was not vacant on the original completion date, Mrs Decevic had waived her right to object, and her failure to complete was not caused by the absence of vacant possession. Under the contract and existing authorities, Mr Ari was entitled to recover the deposit. There were no grounds to exercise the discretion under Conveyancing Act 1919 s 55(2A) to relieve Mrs Decevic from the obligation to pay the deposit. On the cross-claim, there was no binding loan agreement requiring the bank to provide finance because the Decevics did not comply with...

Court Disposition

Plaintiff successful against the defendant for the value of the deposit. Bank obtains judgment against cross-claimant. Directions made for costs argument.

Orders

  • Plaintiff entitled to recover deposit from Defendant.
  • Judgment for the bank on the cross-claim.