Stojanovski v Stojanovski [2012] NSWSC 1338

Stojanovski v Stojanovski [2012] NSWSC 1338

Clause 3.19 was a separate regime making performance of the Deed contingent on the removal of the second defendant's caveat or her consent to lodgement of the transfer by 30 September 2009. Because neither event occurred by that date, the contingency failed. The combined words 'subject to and conditional upon' and 'void and of no effect' showed an objective intention that the Deed automatically cease to have effect, not that it be merely voidable. The plaintiff's claims under prayers 5 and 5A were therefore dismissed.

Jurisdiction
Australia
Judgment Date
16 November 2012
Procedural Posture
Equity Division Expedition List Proceedings Concerning Construction and Effect of a Deed of Release / Principal Judgment After Hearing; Claims Sought by Prayers 5 and 5 a Dismissed and Proceedings Stood Over for Further Directions
Outcome
Claims sought by prayers 5 and 5A of the Amended Statement of Claim filed on 31 October 2012 dismissed; proceedings stood over for further directions.
Legal Topics
['construction of Deed' 'contingency and Promissory Condition' 'void and Voidable Contracts' 'caveat Affecting Transfer of Land' 'family Provision Settlement']
['contract' 'equity' 'succession'] ['construction of Deed' 'contingency and Promissory Condition' 'void and Voidable Contracts' 'caveat Affecting Transfer of Land' 'family Provision Settlement']

Case Brief

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Procedural Posture

Equity Division Expedition List Proceedings Concerning Construction and Effect of a Deed of Release / Principal Judgment After Hearing; Claims Sought by Prayers 5 and 5 a Dismissed and Proceedings Stood Over for Further Directions

Legal Issues

  1. 1 ['Whether clause 3.19 of the Deed created a true contingency or a promissory condition.' "Whether the failure by 30 September 2009 to remove the caveat or obtain the caveator's consent rendered the Deed void and of no effect, or merely voidable." 'Whether any question of a reasonable time beyond 30 September 2009 arose.' 'What consequential orders should be made after determining the effect of clause 3.19.']

Ratio Decidendi

Clause 3.19 was a separate regime making performance of the Deed contingent on the removal of the second defendant's caveat or her consent to lodgement of the transfer by 30 September 2009. Because neither event occurred by that date, the contingency failed. The combined words 'subject to and conditional upon' and 'void and of no effect' showed an objective intention that the Deed automatically cease to have effect, not that it be merely voidable. The plaintiff's claims under prayers 5 and 5A were therefore dismissed.

Court Disposition

Claims sought by prayers 5 and 5A of the Amended Statement of Claim filed on 31 October 2012 dismissed; proceedings stood over for further directions.

Orders

  • ['Dismiss the claims sought by prayers 5 and 5A of the Amended Statement of Claim filed on 31 October 2012.' 'The proceedings should stand over for further directions before Pembroke J on 30 November 2012.']