Nwai Pty Ltd v Johnston & Ors [2005] NSWSC 1368

Nwai Pty Ltd v Johnston & Ors [2005] NSWSC 1368

The notice to complete was valid because the plaintiff was able to comply with the outstanding contamination evidence requirement at the time of service and did provide the certificate well before the date fixed for completion; upon the defendants' non-compliance, the plaintiff validly terminated the contract and was entitled to recover the unpaid deposit. Relief under s55(2A) was refused because the purchasers gave no evidence explaining their failure to complete or establishing that it would be unconscionable for the vendor to retain its contractual right to the deposit.

Jurisdiction
Australia
Judgment Date
29 July 2005
Procedural Posture
Equity Division Proceedings by Vendor to Recover Unpaid Deposit Under a Contract for Sale of Land / Final Judgment
Outcome
Judgment for the plaintiff.
Legal Topics
['vendor and Purchaser' 'contract for Sale of Land' 'notice to Complete' 'termination' 'forfeiture of Deposit' 'relief Against Forfeiture Under S55(2 A)']
['conveyancing' 'contract Law' 'equity'] ['vendor and Purchaser' 'contract for Sale of Land' 'notice to Complete' 'termination' 'forfeiture of Deposit' 'relief Against Forfeiture Under S55(2 A)']

Case Brief

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Procedural Posture

Equity Division Proceedings by Vendor to Recover Unpaid Deposit Under a Contract for Sale of Land / Final Judgment

Legal Issues

  1. 1 ["Whether the purchasers' failure to provide a substituted deposit guarantee bond was a breach of an essential term, and whether any right to rely on that breach was waived by the vendor." 'Whether the notice to complete was invalid because the vendor had not furnished evidence of clearance of contaminated soils at the time the notice was served.' 'Whether the plaintiff was entitled to terminate the contract and sue for the unpaid deposit.' 'Whether the purchasers should be relieved under s55(2A) of the Conveyancing Act 1919 from the requirement to pay the deposit.']

Ratio Decidendi

The notice to complete was valid because the plaintiff was able to comply with the outstanding contamination evidence requirement at the time of service and did provide the certificate well before the date fixed for completion; upon the defendants' non-compliance, the plaintiff validly terminated the contract and was entitled to recover the unpaid deposit. Relief under s55(2A) was refused because the purchasers gave no evidence explaining their failure to complete or establishing that it would be unconscionable for the vendor to retain its contractual right to the deposit.

Court Disposition

Judgment for the plaintiff.

Orders

  • ['Judgment for the plaintiff against the defendants for $147,500 plus interest of $13,229.' "The defendants to pay the plaintiff's costs." 'Liberty to the defendants to approach the judge in chambers not later than Tuesday 2 August 2005 if it is considered the interest figure is incorrect.' 'The exhibits can be...