Kelly v Galafassi & Anor [2013] NSWSC 680

Kelly v Galafassi & Anor [2013] NSWSC 680

The purchasers' repeated statements and conduct showing that they could not and would not complete constituted a continuing repudiation notwithstanding the plaintiff's earlier claim for specific performance. A notice to complete was not required because serving one would have been purposeless in the face of that clear repudiation. The plaintiff acted reasonably in reselling the property and the defendants did not establish a failure to mitigate. The plaintiff was therefore entitled to damages under clause 9.3.1 for the loss on resale, with contractual interest to termination, land tax, and interest under s 100 of the Civil Procedure Act 2005, but not the costs and expenses of the aborted...

Jurisdiction
Australia
Judgment Date
31 May 2013
Procedural Posture
Equity Division Proceeding Concerning Breach of Contract for Sale of Land and Vendor's Remedies / Principal Judgment After Hearing
Outcome
Judgment for the plaintiff against the defendants for $814,907, with costs, and an order concerning release of the deposit.
Legal Topics
['repudiation' 'specific Performance' 'termination of Contract for Sale of Land' 'damages for Breach of Contract' 'loss on Resale' 'mitigation of Loss' 'notice to Complete' 'contractual Interest' 'land Tax' 'costs and Expenses of Sale']
['contracts' 'conveyancing' 'equity' 'civil Procedure'] ['repudiation' 'specific Performance' 'termination of Contract for Sale of Land' 'damages for Breach of Contract' 'loss on Resale' 'mitigation of Loss' 'notice to Complete' 'contractual Interest' 'land Tax' 'costs and Expenses of Sale']

Case Brief

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Procedural Posture

Equity Division Proceeding Concerning Breach of Contract for Sale of Land and Vendor's Remedies / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether commencement of proceedings for specific performance prevented the plaintiff from later terminating for repudiation and claiming damages for loss on resale.' 'Whether a notice to complete was required before the vendor could terminate where the purchasers had indicated they were unable to complete.' "Whether the purchasers' conduct amounted to a continuing repudiation of the contract." 'Whether the plaintiff failed to mitigate her loss in reselling the property.' 'Whether contractual interest, land tax, and costs and expenses of the aborted sale were recoverable.']

Ratio Decidendi

The purchasers' repeated statements and conduct showing that they could not and would not complete constituted a continuing repudiation notwithstanding the plaintiff's earlier claim for specific performance. A notice to complete was not required because serving one would have been purposeless in the face of that clear repudiation. The plaintiff acted reasonably in reselling the property and the defendants did not establish a failure to mitigate. The plaintiff was therefore entitled to damages under clause 9.3.1 for the loss on resale, with contractual interest to termination, land tax, and interest under s 100 of the Civil Procedure Act 2005, but not the costs and expenses of the aborted...

Court Disposition

Judgment for the plaintiff against the defendants for $814,907, with costs, and an order concerning release of the deposit.

Orders

  • ['Judgment for the plaintiff against the defendants for the sum of $814,907.' "Defendants to pay the plaintiff's costs." 'Order the defendants to authorise the agents to account to the plaintiff for the deposit.' 'Liberty to apply on calculations in paragraph [52].']