Recent Cases

Clark v Zele [2023] NSWCA 296 (11 December 2023) (Payne, Kirk and Stern JJA)


CONTRACT – sale of residential property – the appellant and respondents entered into a contract for the sale of the appellant’s property – completion did not occur by the completion date – the respondents sought and were granted specific performance and declaratory relief with the question of damages reserved – Parker J found deposit payable under contract of sale was paid in full by the respondents and was valid and binding – specific performance later became impossible – matter relisted before the Real Property List Judge – both parties purport to terminate the contract of sale – further hearing before Peden J to determine whether respondents are entitled to return of deposit paid under the contract of sale – appellant contends deposit not fully paid as sum of $3,750 had been forfeited pursuant to Conveyancing Act 1919 (NSW) s 66V – the respondents rescinded an earlier contract during the cooling off period – appellant contends forfeited amount cannot form part of the deposit under the contract of sale – Peden J declared the respondents validly terminated contract – Peden J ordered return of deposit to the respondents – Peden J’s orders made in accordance with earlier finding of Parker J that deposit was paid by respondents in full – whether Peden J erred in returning deposit amount to respondents – where appellant does not challenge earlier judgment or orders of Parker J.

APPEALS – procedure – appellant filed notice of intention to appeal on 10 July 2023 – appellant filed notice of appeal on 13 September 2023 – appellant served notice of appeal on 3 October 2023 – notice of appeal served out of time – respondent does not oppose extension of time for filing notice of appeal – extension of time for filing notice of appeal allowed pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 51.16(2).