Namrood v Ebedeh-Ahvazi

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

1. LEEMING JA: Sarjon Youssif Namrood appeals as of right from a judgment holding that his vendor, Sam Ebedeh-Ahvazi, is entitled to retain a deposit of $146,000 paid by him pursuant to a contract for the sale of some 5.75 acres of vacant land in Cecil Park in south western Sydney. The primary judge (Darke J) heard and determined a claim and cross-claim over two days and delivered careful reasons addressing a large number of issues raised by the parties in a judgment delivered a fortnight later: Ebedeh-Ahvazi v Namrood [2017] NSWSC 399. The 12 grounds of appeal which were pressed give rise to six broad areas of dispute: 1. Questions of construction as to the time by which the vendor was required to undertake certain activities pursuant to orders made by the local council (grounds 1-3); 2. A challenge to the factual findings as to whether the vendor's belated undertaking of works and provision of a survey satisfied his contractual obligations (grounds 4 and 6); 3. Whether the vendor had repudiated the contract (ground 7); 4. Whether the vendor's termination of the contract by notice was valid (ground 8); 5. Whether the primary judge had erred in rejecting a claim based on the Australian Consumer Law derived from the advertisement of the property as a "mortgagee sale" (grounds 9-11), and 6. Whether the primary judge had erred in the exercise of discretion under s 55(2A) of the Conveyancing Act 1919 (NSW) as to the repayment of the deposit (grounds 12-13).