Zele v Clark [2022] NSWSC 925

Zele v Clark [2022] NSWSC 925

The contract for sale of land was valid and enforceable as it was signed by the defendant, there was no sufficient evidence of lack of authority by the conveyancer or of timely termination for delay in paying the deposit. The objections based on hardship and futility were unsupported by sufficient evidence; neither hardship nor futility was established and specific performance remains appropriate for sales of land. Existing mortgages and caveats do not preclude performance, as the court can make ancillary orders to address these complexities.

Jurisdiction
Australia
Judgment Date
11 July 2022
Procedural Posture
Proceedings for Specific Performance / Principal Judgment After Expedited Hearing
Outcome
Specific performance granted; contract declared enforceable.
Legal Topics
['specific Performance' 'contract for Sale of Land' 'enforceability of Contract' 'vendor Authority' 'deposit Payment' 'mortgages and Caveats' 'hardship' 'futility of Specific Performance']
['equity' 'real Property'] ['specific Performance' 'contract for Sale of Land' 'enforceability of Contract' 'vendor Authority' 'deposit Payment' 'mortgages and Caveats' 'hardship' 'futility of Specific Performance']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Proceedings for Specific Performance / Principal Judgment After Expedited Hearing

Legal Issues

  1. 1 ['Whether the contract for sale is valid and enforceable' 'Whether specific performance should be refused due to hardship or futility' "Whether the contract was entered into without the vendor's authority" 'Effect of delay in payment of deposit']

Ratio Decidendi

The contract for sale of land was valid and enforceable as it was signed by the defendant, there was no sufficient evidence of lack of authority by the conveyancer or of timely termination for delay in paying the deposit. The objections based on hardship and futility were unsupported by sufficient evidence; neither hardship nor futility was established and specific performance remains appropriate for sales of land. Existing mortgages and caveats do not preclude performance, as the court can make ancillary orders to address these complexities.

Court Disposition

Specific performance granted; contract declared enforceable.

Orders

  • ['Declare existence of binding agreement for sale and purchase of the subject property.' 'Order the defendant to specifically perform and carry into execution the agreement.' 'Reserve form of any necessary directions to give effect to the order for specific performance, any claim for damages for past breach of...