Clark v Zele [2023] NSWCA 296

Clark v Zele [2023] NSWCA 296

The appeal failed because Mr Clark had not appealed, and did not seek to appeal, Parker J's judgment and orders declaring the Sale Contract binding and enforceable and finding that the full $150,000 deposit was paid. The Court was therefore required to proceed on that basis, and Mr Clark could not contend that Mr and Mrs Zele were in breach of the obligation to pay the deposit. Independently, Mr Clark did not resist before Peden J the declaration that Mr and Mrs Zele validly terminated the Sale Contract on 1 November 2022; he was bound by that conduct, and that declaration necessarily meant the contract had not already been terminated by him. Mr and Mrs Zele were consequently entitled...

Jurisdiction
Australia
Judgment Date
11 December 2023
Procedural Posture
Appeal From Supreme Court of New South Wales, Equity, Concerning a Contract for Sale of Land and Return of Deposit / Court of Appeal Judgment; Time for Filing Notice of Appeal Extended and Appeal Dismissed
Outcome
Time for filing the notice of appeal was extended; appeal dismissed with costs.
Legal Topics
['sale of Residential Property' 'deposit Under Contract for Sale of Land' 'specific Performance' 'termination of Contract' 'cooling Off Period' 'extension of Time to Appeal' 'litigant in Person Bound by Conduct of Case']
['contract Law' 'property Law' 'civil Procedure' 'appeals'] ['sale of Residential Property' 'deposit Under Contract for Sale of Land' 'specific Performance' 'termination of Contract' 'cooling Off Period' 'extension of Time to Appeal' 'litigant in Person Bound by Conduct of Case']

Case Brief

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Procedural Posture

Appeal From Supreme Court of New South Wales, Equity, Concerning a Contract for Sale of Land and Return of Deposit / Court of Appeal Judgment; Time for Filing Notice of Appeal Extended and Appeal Dismissed

Legal Issues

  1. 1 ['Whether time for filing the notice of appeal should be extended under UCPR, r 51.16(2).' 'Whether leave to appeal was required where the sum in issue was $150,000.' 'Whether Peden J erred in declaring that Mr and Mrs Zele validly terminated the Sale Contract and ordering return of the deposit.' "Whether Mr Clark could contend on appeal that the full deposit was not paid where he did not appeal Parker J's earlier judgment and orders finding the Sale Contract binding and enforceable and the deposit paid in full." 'Whether Mr Clark was bound by his conduct before Peden J, including not resisting the declaration that Mr and Mrs Zele validly terminated the Sale Contract.']

Ratio Decidendi

The appeal failed because Mr Clark had not appealed, and did not seek to appeal, Parker J's judgment and orders declaring the Sale Contract binding and enforceable and finding that the full $150,000 deposit was paid. The Court was therefore required to proceed on that basis, and Mr Clark could not contend that Mr and Mrs Zele were in breach of the obligation to pay the deposit. Independently, Mr Clark did not resist before Peden J the declaration that Mr and Mrs Zele validly terminated the Sale Contract on 1 November 2022; he was bound by that conduct, and that declaration necessarily meant the contract had not already been terminated by him. Mr and Mrs Zele were consequently entitled...

Court Disposition

Time for filing the notice of appeal was extended; appeal dismissed with costs.

Orders

  • ['Time for filing a notice of appeal is extended to 3 October 2023 under UCPR, r 51.16(2).' 'The appeal is dismissed.' "Mr Clark is to pay Mr and Mrs Zele's costs of the appeal."]