Kitanovski v Ibrahim [2022] NSWSC 1232

Kitanovski v Ibrahim [2022] NSWSC 1232

Specific performance was appropriate because the November 2019 contract for sale was valid, the plaintiff had paid the deposit and stamp duty, was ready, willing and able to complete, and the vendor did not oppose performance. The plaintiff had standing under s 74MA as purchaser under a subsisting contract. Both caveators showed a serious question to be tried: the Commissioner by the Deed and mortgage, and Mr Ibrahim by the Loan Agreement and charge despite defects in the caveat description. The contract price of $2,805,000 was about $700,000 below the property's November 2019 market value of about $3,500,000, so unconditional withdrawal would prejudice the caveators. However, requiring...

Jurisdiction
Australia
Judgment Date
14 September 2022
Procedural Posture
Specific Performance Claim Concerning a Contract for Sale of Land and Application Under S 74 MA of the Real Property Act 1900 (nsw) for Withdrawal of Caveats / Principal Judgment After Hearing
Outcome
Orders to be made for specific performance of the November 2019 contract for sale and for withdrawal of the caveats lodged by Mr Ibrahim and the Commissioner of Taxation, subject to payment into Court of surplus proceeds and $700,000.
Legal Topics
['caveats' 'withdrawal of Caveats' 'specific Performance' 'contract for Sale of Land' 'serious Question to Be Tried' 'balance of Convenience' 'alternative Security' 'market Value']
['real Property' 'equity' 'contract'] ['caveats' 'withdrawal of Caveats' 'specific Performance' 'contract for Sale of Land' 'serious Question to Be Tried' 'balance of Convenience' 'alternative Security' 'market Value']

Case Brief

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Procedural Posture

Specific Performance Claim Concerning a Contract for Sale of Land and Application Under S 74 MA of the Real Property Act 1900 (nsw) for Withdrawal of Caveats / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether orders in the nature of specific performance should be made for the November 2019 contract for sale of the Yowie Bay property.' 'Whether the plaintiff had standing under s 74MA of the Real Property Act 1900 (NSW) to seek withdrawal of the caveats.' 'Whether there was a serious question to be tried as to the existence of the interests claimed by the Commissioner of Taxation and Mr Ibrahim in their caveats.' 'Whether the balance of convenience favoured continuation or withdrawal of the caveats.' 'Whether withdrawal of the caveats should be ordered subject to a condition that the plaintiff pay into Court the difference between the contract price and the market value of the property.']

Ratio Decidendi

Specific performance was appropriate because the November 2019 contract for sale was valid, the plaintiff had paid the deposit and stamp duty, was ready, willing and able to complete, and the vendor did not oppose performance. The plaintiff had standing under s 74MA as purchaser under a subsisting contract. Both caveators showed a serious question to be tried: the Commissioner by the Deed and mortgage, and Mr Ibrahim by the Loan Agreement and charge despite defects in the caveat description. The contract price of $2,805,000 was about $700,000 below the property's November 2019 market value of about $3,500,000, so unconditional withdrawal would prejudice the caveators. However, requiring...

Court Disposition

Orders to be made for specific performance of the November 2019 contract for sale and for withdrawal of the caveats lodged by Mr Ibrahim and the Commissioner of Taxation, subject to payment into Court of surplus proceeds and $700,000.

Orders

  • ['Orders in the nature of specific performance of the November 2019 contract for sale are to be made.' 'Orders under s 74MA of the Real Property Act 1900 (NSW) are to be made for withdrawal of the caveats lodged by Mr Ibrahim and the Commissioner of Taxation.' 'Any surplus proceeds remaining after payment of land...