Assadourian v Assadourian [2001] NSWSC 1054

Assadourian v Assadourian [2001] NSWSC 1054

The requirement to vacate by 1 February 1998 was an essential term of the deed, but failure to comply did not entitle automatic refund of the money unless expressly provided. As there was no such provision or claim for damages, the plaintiff's claim for return of the moneys must fail; similarly, the defendant's claim was also not supported as vacant possession was never voluntarily given.

Jurisdiction
Australia
Judgment Date
21 November 2001
Procedural Posture
Civil / Judgment After Final Hearing
Outcome
The plaintiff is entitled to have the costs ordered in connection with the proceedings paid out of the moneys in court. If necessary, leave will be given to amend to claim this formally. Costs will likely exceed the balance and end the proceedings.
Legal Topics
['deed of Release' 'conditional Payment' 'vacant Possession' 'breach of Contract' 'estoppel']
['equity' 'contracts'] ['deed of Release' 'conditional Payment' 'vacant Possession' 'breach of Contract' 'estoppel']

Case Brief

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Procedural Posture

Civil / Judgment After Final Hearing

Legal Issues

  1. 1 ['Whether the obligation to vacate the property by 1 February 1998 was an essential term of the deed of release' 'Whether failure to vacate by the required date entitled the plaintiff to return of money paid under the deed' 'Whether time was of the essence in the deed' "Whether the plaintiff's claim was precluded by estoppel from earlier litigation" 'Whether defendant was entitled to the moneys paid under the deed despite not vacating as agreed']

Ratio Decidendi

The requirement to vacate by 1 February 1998 was an essential term of the deed, but failure to comply did not entitle automatic refund of the money unless expressly provided. As there was no such provision or claim for damages, the plaintiff's claim for return of the moneys must fail; similarly, the defendant's claim was also not supported as vacant possession was never voluntarily given.

Court Disposition

The plaintiff is entitled to have the costs ordered in connection with the proceedings paid out of the moneys in court. If necessary, leave will be given to amend to claim this formally. Costs will likely exceed the balance and end the proceedings.

Orders

  • ['Costs in favour of the plaintiff to be paid out of moneys in court' 'Leave to amend to make claim for costs if necessary']