Rushcutters Bay Developments Pty Ltd v Dragon Asset Investment Pty Ltd (No 2) [2017] NSWSC 866

Rushcutters Bay Developments Pty Ltd v Dragon Asset Investment Pty Ltd (No 2) [2017] NSWSC 866

Upon the proper construction of the contract as varied, the vendor is restricted by cl 9.1 to recovering a deposit up to 10% of the price; later provisions concerning retention of paid deposit do not override the express cap on recovery of unpaid deposit. There is no unjust or inequitable circumstance warranting discretionary relief under s 55(2A) of the Conveyancing Act 1919 (NSW), so the vendor may recover only $937,500 plus interest from the defendants.

Parties
Plaintiff: Rushcutters Bay Developments Pty Ltd; First Defendant: Dragon Asset Investment Pty Ltd; Second Defendant: Kai Lung Sze
Jurisdiction
Australia
Judgment Date
30 June 2017
Procedural Posture
Principal Judgment / Judgment After Hearing on Claim and Cross Claim
Outcome
Judgment for the plaintiff against the defendants in the sum of $937,500 plus interest; other claims dismissed
Legal Topics
Contract for Sale, Deposit, Forfeiture of Deposit, Contract Interpretation, Statutory Discretion to Return Deposit
Equity Land Law Contracts Contract for Sale Deposit Forfeiture of Deposit Contract Interpretation Statutory Discretion to Return Deposit

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Parties

Rushcutters Bay Developments Pty Ltd

Plaintiff

Dragon Asset Investment Pty Ltd

First Defendant

Kai Lung Sze

Second Defendant

Procedural Posture

Principal Judgment / Judgment After Hearing on Claim and Cross Claim

Legal Issues

  1. 1 Whether the vendor is entitled to recover deposit instalments exceeding 10% of the purchase price after termination for purchaser’s breach
  2. 2 Whether variations to the contract altered the cap on recovery in cl 9.1
  3. 3 Whether the court should exercise discretion under s 55(2A) of the Conveyancing Act 1919 (NSW) to return deposit

Ratio Decidendi

Upon the proper construction of the contract as varied, the vendor is restricted by cl 9.1 to recovering a deposit up to 10% of the price; later provisions concerning retention of paid deposit do not override the express cap on recovery of unpaid deposit. There is no unjust or inequitable circumstance warranting discretionary relief under s 55(2A) of the Conveyancing Act 1919 (NSW), so the vendor may recover only $937,500 plus interest from the defendants.

Court Disposition

Judgment for the plaintiff against the defendants in the sum of $937,500 plus interest; other claims dismissed

Orders

  • Defendants to pay the plaintiff $937,500 plus interest calculated from 7 July 2016 to date of judgment pursuant to s 100 of the Civil Procedure Act 2005 (NSW)
  • Defendants to pay plaintiff's costs of the proceedings