Dasreef Developments Pty Ltd v Josiv Velkovski

Chronology of Events

1. The Purchaser is 63 years old and is fully engaged in the business of Lampart Australasia Pty Ltd (Lampart), of which he is the sole director, secretary and shareholder. Lampart was formed in 2010 following the appointment of an administrator to its predecessor, Lampart Australia Pty Ltd. In 2014, the Purchaser sold his family home and applied the proceeds of sale in repayment of a loan secured on the home as well as to pay creditors of Lampart Australia Pty Ltd.
2. In March 2015, the Purchaser proposed to buy a residence for himself and his wife. Strathfield Partners were recommended to him by a friend whose daughter had purchased a unit in the development in Loftus Crescent, Homebush. Strathfield Partners had been retained as selling agents to market and sell units in the development. The Purchaser said in his affidavit, sworn 10 March 2017, that he telephoned Strathfield Partners and spoke to Ms Tina Tang, saying that he had been referred to her in relation to an off-the-plan investment property. He said that, following that telephone conversation, he attended personally on Ms Tang at the premises of Strathfield Partners, where he was shown a one page document listing units for sale. He does not recall that there were any plans forming part of or attached to the document.
3. The Purchaser said that Ms Tang told him that she had a unit available that would face the street and would have a courtyard where he could exit to the street without going through the lobby of the building. He said that Ms Tang did not mention the unit number or proposed lot number of the unit that she described. He said that Ms Tang told him that the price was $630,000 off-the-plan and that the Vendors required a deposit of 10%. She told him that building work would commence in about three or four months so there was nothing to inspect at that time. The Purchaser said that, on the day after speaking to Ms Tang, he met her and paid a holding deposit of $2,000. On 22 April 2015, he purchased a bank cheque for $61,000 for the balance of the deposit payable under the Contract.
4. Ms Tang has been working as a real estate agent since 2011 and she sold 28 units in the Loftus Street development. She said in her affidavit, sworn 5 May 2017, that the Purchaser attended the office of Strathfield Partners in early April 2015. She could not recall the apartments that she described to him but remembered showing him three or four floor plans, along with building plans. She said that, during their discussion, the Purchaser said that he did not want a noisy unit and wanted one at the back of the building away from the railway. Ms Tang said that she showed the Purchaser a floor plan for unit G05 and told him that unit G05 was at the back of the building. She told him that it was different from the one that his friend's daughter had purchased, which faces the railway. She said that she told him that unit G05 did not face the street and would be much quieter because it would be away from the railway noise.
5. Ms Tang said that at the conclusion of the meeting, the Purchaser said that he needed to discuss with his family which unit he wanted to buy. She said that, on 10 April 2015, about two days after the meeting, the Purchaser telephoned her and said that he had spoken with his family and would buy unit G05 for $630,000. She said that two days after that telephone call, the Purchaser attended the office of Strathfield Partners and paid a holding deposit of $2,000.
6. Ms Tang denied that she said the words deposed to by the Purchaser. She was certain that she did not use those words in relation to unit G05 because she had reviewed the floor plans, strata plan and building plans regularly and, at that stage, had sold many units in the complex and was aware that the Unit did not have street access. She identified a plan that she asserted that she showed to the Purchaser.
7. It is difficult to resolve the conflict between the Purchaser and Ms Tang as to the terms of their discussion. There is no reason why Ms Tang would have any particular recollection of the discussion with the Purchaser, as she accepted that she interviewed three or more people each day in connection with the marketing of units in the development. On the other hand, that activity would ensure that she would be familiar with the plans of the development and there is no reason why she would have misrepresented to the Purchaser the location of the unit that she was describing to him.
8. The Contract was signed by the Purchaser when he attended on his solicitor. The Purchaser did not tell his solicitor about the conversation that he says that he had with Ms Tang. Significantly, special condition 23 of the Contract provided that the provisions set out in the Contract contained the entire agreement between the parties despite any negotiations or discussions held or documents signed or brochures produced before the date of the Contract. It also provided that, in entering into the Contract, the Purchaser had not relied on any warranty or representation made by, or any other conduct of, the Vendors or any person on behalf of the Vendors, except as expressly provided in the Contract or in legislation. Finally, special condition 23 of the Contract also provided that the Purchaser was relying entirely upon his own inquiries relating to fitness or suitability for any particular purpose of the Unit.
9. No evidence was adduced from the solicitor who acted for the Purchaser in connection with the Contract. One would expect the solicitor to have satisfied himself that the Purchaser adequately identified the unit that he intended to buy. Further, a draft of the proposed strata plan identifying the location of the unit that was the subject of the Contract was included in and formed part of the Contract. In the circumstances, there is no reason to doubt that the Purchaser identified to his solicitor the unit that he wished to buy. Of course, it is possible that there was some misunderstanding. If the misunderstanding was material, it is surprising that it did not become apparent at the time when the Contract was signed by the Purchaser.
10. The Purchaser said in his affidavit that he first attended the site of the development on 16 March 2016. At that time, the development was still a building site, although construction had progressed sufficiently for him to inspect the Unit. He said that, prior to attending the site, he telephoned Ms Tang, who told him that a representative of the Vendors was usually on the site. The Purchaser said that he met a man on the site whose name he could not recall, but who was subsequently identified as Mr Nazih Hayek. He said that Mr Hayek telephoned Ms Tang and asked which unit belonged to him. In her affidavit, Ms Tang denied that she received any telephone call from Mr Hayek.
11. The Purchaser said that he was taken by Mr Hayek to a ground floor unit, which he inspected. He said that the unit that he inspected adjoined the street and had an open area that appeared to him to be consistent with and available for the construction of a courtyard. He said that he believed that the unit that he inspected was the unit that was the subject of the Contract. He said, however, that that unit was not the one described to him by Ms Tang, because the unit described by her did not adjoin the street. Nevertheless, he decided not to challenge the Contract and continued with his intention of completing the purchase. It was not suggested that the Purchaser at any time complained to Ms Tang that the Contract described the wrong unit.
12. On 23 May 2016, the Purchaser's solicitors wrote to the Vendors' solicitors saying that the Purchaser wished to assign all of his interests under the Contract to JVFT Pty Ltd, as trustee of the Velkovski Family Trust. The Vendors' solicitors responded on 31 May 2016, saying that their client would agree to an assignment but requested that the Purchaser's solicitor attend to preparation of the relevant deed of assignment for approval. On 28 June 2016, the Purchaser's solicitors forwarded to the Vendors' solicitors a draft deed of novation for consideration by the Vendors. On 30 June 2016, the Vendors' solicitors wrote to the Purchaser's solicitors making comments on the draft deed of novation. A further exchange occurred on 14 July 2016 concerning the form of guarantee required by the Vendors. However, no deed of novation was entered into.
13. Under the Contract, completion was to take place on the later of:

• Six weeks after the date of the Contract;
• 14 days after the Vendors served a notice notifying the Purchaser that the strata plan had been registered by Land and Property Information (LPI);
• 14 days after the issue of an interim or final occupation certificate issued under s 109C of the Environmental Planning and Assessment Act 1979 (NSW).

1. On 28 July 2016, the Vendors' solicitors forwarded to the Purchaser's solicitors a copy of an interim occupation certificate in respect of the Unit. The letter also informed the Purchaser's solicitors that the strata plan had been lodged with the Registrar-General and had been allocated a strata plan number. On that day, the Purchaser inspected the property with his wife and an architect friend as well as Ms Tang. It is not clear whether the inspection was prompted by the letter of 28 July 2016 or whether it was a mere coincidence.
2. Following receipt of the letter of 28 July 2016, the Purchaser attended on a finance broker. He had not taken steps to obtain finance before that date because he had assumed that obtaining finance to purchase a home unit would not be difficult. He made an application for finance to AusWise Finance Pty Ltd (AusWise). A statement of assets and liabilities formed part of the application for finance. The assets that he listed included the value of the Unit. When he signed the statement of assets and liabilities, the Purchaser did not notice that an amount had not been included as a liability secured by the proposed mortgage of the Unit. He also did not notice that the deposit of $63,000 was included as an asset, effectively double counting that amount.
3. On 4 August 2016, the Vendors' solicitors gave notice in accordance with the Contract that the strata plan for the proposed development had been registered with LPI. The letter said that completion must therefore take place in accordance with the terms of the Contract. The Purchaser's solicitors were invited to telephone to book a time for completion.
4. On 29 August 2016, the Vendors' solicitors sent an email to the Purchaser's solicitors referring to the notice of registration and saying that settlement was due on 18 August 2016. The email said that they had not yet received a transfer document or an appointment to settle. The email said that the Vendors' solicitors had instructions to serve a notice to complete. The Purchaser's solicitors responded on 30 August 2016 saying that they were getting a settlement date and would let the Vendors know as soon as possible. The email also asked about "the extra car parking space". The Vendors' solicitors responded by email shortly after it saying that, as far as they were aware, the Purchaser did not place a deposit with the agent for an extra car space and that there was only one car space under the Contract.
5. On 30 August 2016, the Vendors' solicitors served on the Purchaser's solicitors a notice to complete the Contract. The notice required the Purchaser to complete on or before 15 September 2016 and said that time was of the essence. The Vendors appointed 3pm on 15 September 2016 at 4/122 Castlereagh Street, Sydney as the time and place for completion. The notice said that, should the Purchaser fail to complete the Contract within the time specified, he would be in breach of the Contract and the Vendors would exercise all rights and remedies that were available to them by reason of the breach.
6. By letter of 5 September 2016, Future Financial informed the Purchaser that a loan had been approved "in principle". To enable completion of the application, a number of items were said to be outstanding or requiring further clarification. The letter said that the approval in principle could be withdrawn at any time if anything occurred that, in the opinion of the mortgage manager, its funders or its insurers, adversely affected the loan proposal as they understood it. The letter said that it was not an offer of finance and that interest rates were "indicative".

• a letter from the administrators that the administration of Lampart Australia Pty Ltd had been finalised;
• details of the Velkovski Family Trust; and
• written confirmation from accountants confirming that various businesses connected with the Purchaser were either trading profitably or, if not trading, had no outstanding liabilities.

1. On 13 September 2016, the Purchaser's solicitors sent an email to the Vendors' solicitors attaching an amended adjustment sheet for 15 September 2016. The email said that the mortgagee would not have been ready for 14 September 2016. The Vendors' solicitors responded on 14 September 2016 saying that the amended figures and cheque details were agreed and that instructions for settlement would be given at 2pm the following day.
2. However, at 8.51am on 15 September 2016, the solicitors for the Purchaser sent an email to the Vendors' solicitors saying that they had just learnt that settlement "cannot happen today". They said that the Purchaser sought to have the notice to complete extended and that they were trying to find out how long was needed. On 15 September 2016, the Vendors' solicitors wrote to the Purchaser's solicitors. After referring to the notice to complete requiring completion on 15 September 2016, they said that they had been instructed to extend the date for expiry of the notice to complete to 3pm on 20 September 2016.
3. On 19 September 2016, the Vendors' solicitors wrote to the Purchaser's solicitors with directions for the payment of the balance of the purchase price and confirmed that settlement was scheduled to take place at 3pm on 20 September 2016. A settlement adjustment sheet was attached.
4. It appears that the proposed finance from AusWise was withdrawn prior to 19 September 2016. The Purchaser's broker sent an email to the Purchaser's solicitor on 19 September 2016 suggesting that the action of AusWise was "a mark of irresponsible lending". The broker said that he had a lender that could possibly settle on the following day. There was no evidence as to the reason for the withdrawal of the proposed finance.
5. At 7.14am on 20 September 2016, the Purchaser's solicitors sent an email to the Vendors' solicitors saying that settlement would not be possible on that day and requesting a further extension of the notice to complete. On 20 September 2016, the Purchaser's broker forwarded an email to the Purchaser's solicitors. The email said: "… we confirm that we have sufficient funds through our Responsible Entity Eclipse Prudent Mortgage Corporation Limited to facilitate a loan of $530,000.00 to … JVFT PTY LTD trustee for the JV Family trust". However, the Purchaser made no effort to inform the Vendors of the efforts that he was taking to arrange finance.
6. By letter of 21 September 2016, the Vendors' solicitors sent to the Purchaser's solicitors a notice of termination of the Contract. The ground for termination was the default in compliance with the notice to complete dated 30 August 2016.
7. On 22 September 2016, Eclipse Prudent Mortgage Corporation Ltd (Eclipse) wrote to JVFT Pty Ltd, as trustee for the Velkovski Family Trust, confirming having "conditionally approved" an application for a commercial mortgage advance. The borrower was to be JVFT Pty Ltd and the purpose was the purchase of a property for investment. The amount of the advance was $420,000 and was not to exceed 66.67% of a valuation. The letter contained the following: "This approval is subject to approval of our lending committee when your written and completed loan application form is signed and returned together with the requested documents in support are verified and found satisfactory. … You shall need to provide a written statement as to the details of the investment/business purposes of this loan. Please provide evidence of the Borrower's current income and a letter from their accountant … confirming the Borrower's capacity to meet the interest payments. Please also provide evidence of the Guarantor's income and a letter … from the accountant of each Guarantor confirming in the event of default by the borrower, the Guarantor has the capacity to meet the interest payments. … Please note it is a pre-condition of our Lending Committee that income evidence and original letters are provided before settlement." The letter said that, if the terms and conditions were acceptable, a copy of the letter should be signed and returned within seven days and that the loan could not be proceeded with until all items had been received and deemed satisfactory.

Relevant Principles

1. Section 55(2A) confers upon the Court a statutory jurisdiction, if it thinks fit, to order the repayment of a deposit notwithstanding its forfeiture in accordance with the terms of a contract between the parties. That jurisdiction was not previously available either at common law or in equity. Accordingly, the jurisdiction conferred by the provision should not be confined by analogy with the jurisdiction at common law and in equity to grant relief against a penalty or against forfeiture.
2. It is clear enough that, at law, a vendor's right to forfeit a deposit in the event of a purchaser's default does not bear any necessary relation to the damages actually suffered by the vendor. At law, a forfeited deposit could result in a vendor making a profit that, in justice and equity, the vendor ought not to be permitted to enjoy at the purchaser's expense. By the same token, an order for the repayment of a deposit does not necessarily affect the vendor's right to sue a defaulting purchaser at law and recover from him such damages as the vendor can prove. However, s 55(2A) does not give the Court an overall discretionary supervision of monetary adjustments between parties to a contract under which a deposit has been paid but which has been terminated. A vendor who forfeits a deposit in strict enforcement of the vendor's legal rights is not to be deprived of it unless it is unjust and inequitable to permit its retention. [1]
3. A deposit paid under a contract for the sale and purchase of land is an earnest for performance. The practice of giving an earnest as something to signify the conclusion of a contract is one of great antiquity. Under Roman law, a contract of sale was concluded at the moment when the parties reached consensus as to the subject matter and the price. An earnest, or "arra", was an indication that the parties had reached consensus: it was not required for the validity of a contract for sale. If consensus was reached, and that could be proved, there was no requirement for an earnest or arra. If an arra was given, that went towards proving that consensus had been reached. [2] In AD528, Justinian enacted that, where the parties agreed that a contract should be in writing, there would be no valid contract unless the writing had been brought into existence and confirmed with the signatures of the parties. However, if any earnest or arra had been given in contemplation of the making of a contract for sale, and the contract did not proceed, a vendor who refused to perform was compelled to repay double the earnest or arra and a purchaser who refused to perform lost the earnest or arra and was denied the right to reclaim the earnest or arra. [3] That is to say, even where the parties agreed that their contract was to be in writing before they were contractually bound, the giving and acceptance of an earnest or arra would have consequences, in that the earnest or arra could be forfeited and lost to the purchaser or the vendor could be required to repay double the earnest or arra.
4. The Civil Law inherited similar principles. Thus, a distinction existed between an earnest given at a time before a contract had been concluded so as to become binding, on the one hand, and an earnest given after a contract of sale had been concluded. [4] In the former case, the person who received the earnest obliged himself to the other, while the party who gave it did not properly contract any obligation. [5] While an earnest was often given by the buyer to the seller in order to serve as proof that a bargain had been concluded, the giving of an earnest was not essential to the making of a contract for sale if the parties agreed upon some other mode of proof that they had concluded their bargain. [6] Nevertheless, where an earnest consisted of a sum of money, and a contract was concluded, the earnest was considered to be given on account of, and to be deducted from, the price that the buyer was obliged to pay.
5. In a contract for the sale and purchase of land in New South Wales, the deposit paid by the purchaser to the vendor must be understood as both an earnest or arra and in part payment of the purchase price. If the purchaser defaults, the earnest or arra is to be forfeited. However, if the purchaser completes, the earnest or arra is taken to be part payment of the price. [7]
6. Those considerations must be borne in mind when considering the scope of the discretion conferred by s 55(2A). The fact that the deposit is an earnest to secure performance is part of the context in which the discretion must be exercised. The Court will not lightly be moved to order the return of a deposit paid as an earnest for performance and forfeited in accordance with the express terms of the contract when performance has not occured. That context is also significant when considering the justice and equity of the case and whether the Court should see fit to order the repayment of a deposit. However, the forfeited deposit should not be characterised as a windfall to the vendor simply because it is forfeited. In considering an application under s 55(2A) it would be relevant for the Court to consider several factors, including the nature of the deposit, the terms of the contract providing for its forfeiture and the circumstances in which the deposit was forfeited. [8] The section was designed to provide relief to a purchaser against an unjust and inequitable consequence of forfeiture of a deposit. However, it must be an unjust and inequitable consequence as between the buyer and seller.

The Purchaser's Claim

1. One must start with the position that the Purchaser has, by the Contract, agreed that his failure to perform will result in the forfeiture of the deposit that he paid pursuant to the Contract. The question now raised under s 55(2A) is whether the circumstances are such that it would be unjust or inequitable for the Vendors to retain the deposit. The Purchaser contends that there are several factors that support the making of an order under s 55(2A).
2. First, the Vendors have suffered no loss as a consequence of the default by the Purchaser, in that they re-sold the Unit for $640,000 whereas the price payable by the Purchaser was $630,000. The Vendors have not suggested that they suffered any other loss by reason of the Purchaser's default.
3. Secondly, the Purchaser points to the fact that the deposit of $63,000 represented a substantial part of moneys remaining after the sale of his family home. He has no other substantial assets that would enable him to re-establish himself and buy a home for him and his wife. He is now aged 63 and, although he continues to operate his family business, his capacity to rebuild an asset base after the forced sale of his family home has been diminished.
4. Thirdly, the Purchaser says, he was endeavouring to perform the Contract and, notwithstanding that it was in accordance with the terms of the Contract, the termination was, in one sense, peremptory. Nevertheless, he did not attempt to inform the Vendors of the steps that he was taking to enable himself to be in a position to complete. He needed to borrow a very substantial part of the price payable under the Contract to complete the purchase. Notification of the lodgement of the strata plan on 28 July 2016 suggested that registration may be imminent and notification of registration of the strata plan occurred on 4 August 2016. The Purchaser did not apply for finance until 2 August 2016. While approval of finance was given in principle, the approval was withdrawn on 19 September 2016. The Purchaser attempted to revive the finance on 20 September 2016 and sought financial support for the purchase of the Unit from his children. The notice of termination of the Contract was served on 21 September 2016. On the following day, the Purchaser received confirmation of conditional approval.
5. Fourthly, the Purchaser points to his alleged misunderstanding as to the identification of the Unit. Nevertheless, notwithstanding that misunderstanding or misapprehension he continued his efforts to perform under the Contract. The Vendors accept that, if there was a genuine misunderstanding by the Purchaser, even though they did not contribute to the misunderstanding, it would be a relevant factor to be taken into account. However, for the reasons given above, I am not persuaded, on the balance of probabilities, that there was a relevant misunderstanding or misapprehension on the part of the Purchaser.

Conclusion

1. One cannot but sympathise with the position of the Purchaser. As I have indicated, he is in the process of endeavouring to rebuild his business and the loss of the deposit is a very significant financial detriment to him and his wife. Further, the Vendors have suffered no loss from his repudiation of the Contract and were able to resell the Unit at a price higher than the price that was provided for under the Contract. Nevertheless, I do not consider that there is any unjust or inequitable consequence as between the Vendors and the Purchaser.
2. If the Purchaser had informed the Vendors of the efforts that he was making to raise finance to enable him to complete and had furnished evidence to the Vendors that there were firm proposals for him to borrow the funds necessary, the position might have been different. Had the Vendors terminated knowing that he was on the brink of obtaining finance, it may have been unjust and inequitable for them to retain the deposit after terminating the Contract. [9]
3. However that is not what happened. Even now, it is not entirely certain that the Purchaser would have been able to raise sufficient funds to enable him to complete the purchase of the Unit under the Contract. While the termination of the Contract by the Vendors may fairly be characterised as peremptory, I do not consider that the Purchaser has established a basis upon which the discretion conferred by s 55(2A) should be exercised in his favour.
4. It follows that the Vendors are entitled to the declarations sought in their summons that the Contract has been validly terminated and that the deposit paid by the Purchaser has been forfeited. Strathfield Partners should be directed to account to the Vendors for the deposit and interest accrued on the deposit. The Purchaser's cross-claim filed on 7 February 2017 should be dismissed.
5. The Vendors sought an order for costs on the indemnity basis in relation to their summons. I do not consider that a basis for indemnity costs has been established. The Purchaser should pay the Vendors' costs of both the summons and the cross-claim on the ordinary basis.

Endnotes

1. See Lucas & Tait (Investments) Pty Ltd v Victoria Securities Limited (1973) 2 NSWLR 268 at 272.
2. See Gaius, Institutes III.139.
3. See Justinian Institutes III.23.pr and Justinian Code IV.21.17.
4. See RJ Pothier, Treatise on the Contract of Sale Pt 6, Ch 1, Art 3: translation by LS Cushing, Charles C Little and James Brown, 1839.
5. See Pothier, par 503.
6. See Pothier, par 506.
7. See Howe v Smith (1884) 27 Ch D 89 at 102; Brien v Dwyer (1978) 141 CLR 378; [1978] HCA 50 at 386-7.
8. See Havyn Pty Ltd v Webster [2005] NSWCA 182 at [173].
9. See Wilson v Kingsgate Mining Industries Pty Ltd [1973] 2NSWLR 713. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2017