NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR SUN PROPERTY AND INVESTMENT V/S DAVID ELMASRI, ET AL.

Australia, Sept. 8 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 7:

1. These proceedings arise out of a Deed of Put and Call Option entered into on 23 December 2021 between Sun Property and Investment Pty Limited (the plaintiff), David Elmasri and Nibal Elmasri (the defendants and cross-claimants) and Varinder Kaur and Nitka Khanna (the cross-defendants) in respect of a residential property at 393-395 Fifteenth Avenue, Austral, New South Wales, being the land in Lot 365 in Deposited Plan XXXX (the Deed and the Property).

2. Pursuant to clause 2.1 of the Deed, the defendants (who are referred to in the Deed as "the Grantor") granted to the plaintiff (referred to as "the Grantee") an option to purchase the Property for the purchase price of $12,000,000 stipulated in the schedule to the Deed on the terms of the contract for sale of land attached to the Deed (the Call Option).

3. Clauses 3.1, 8.4 and 9 of the Deed, read together with the schedule, provided that the Call Option was exercisable by the plaintiff during the period commencing at 9:00am on the day occurring 43 days after the date of the Deed and expiring at 5:00pm on the date that is 24 months from the commencement date. Calculating the 24-month period as excluding the commencement date, the period within which the plaintiff was entitled to exercise the Call Option expired at 5:00pm on 5 February 2024.

4. Clause 2.1 of the Deed expressly stated that the Call Option was granted in consideration for payment of the Call Option Fee, which was a sum of $600,000. Clause 4.1 of the Deed required the plaintiff to pay the Call Option Fee to the defendant on or before signing the Deed, and provided that it was "irrevocably released" to the defendants immediately upon payment. Clause 4.2 required the Call Option Fee to paid to the defendants' nominated account. Clauses 4.3 and 4.4 provided:

"4.3 Call Option Fee and the Deposit

The parties acknowledge that the Call Option Fee forms part of the Deposit payable under the Contract if the Grantee or its Nominee exercises the Call Option, or the Grantor exercises the Put Option in accordance with this Deed.

4.4. Release of Call Option Fee

4.4.1 The Grantor and the Grantee agree that in the event that the Call Option is not exercised by the Grantee or its Nominee and the Put Option is not exercised by the Grantor, then any amount paid being part of the Call Option Fee shall be forfeited to the Grantor absolutely.

4.4.2 If the Grantee breaches this Agreement in an essential respect, then the Call Option Fee is forfeited to the Grantor."

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19873524f7045d17dd67a2bc)

Disclaimer: Curated by HT Syndication.