AJDJ Pty Ltd v Pacificwest Developments Pty Ltd - [2002] NSWSC 842

CITATION: AJDJ Pty Ltd v Pacificwest Developments Pty Ltd [2002] NSWSC 842

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4811/00

HEARING DATE(S): 05/09/02

JUDGMENT DATE: 11 September 2002

PARTIES :

AJDJ Pty Ltd, David Bruce Cameron, Lachlan Paul Danckert, Terrance Paul Murphy, John Joseph Hopkins, Reginald Seva Moodley, William Geoffrey Ennis and Neville Pradeepkumar Emerson (P)
Pacificwest Developments Pty Ltd (D)

JUDGMENT OF: Young CJ in Eq

COUNSEL : Ms H Thurai Rajah (S) (P)
D Warren (D)

SOLICITORS: Thurai Rajah, Lawyers (P)
Macquarie Lawyers (D)

CATCHWORDS: EQUITY [418]- Specific performance- Order- Purchasers' suit- Purchasers ordinarily may set off costs against purchase money.

CASES CITED: Green v Sevin (1879) 13 Ch D 589
Phillips v Howell [1901] 2 Ch 773

DECISION: Direction made in favour of plaintiffs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 11 September 2002

4811/00 –AJDJ PTY LTD v PACIFICWEST DEVELOPMENTS PTY LTD

JUDGMENT

1 HIS HONOUR: On 14 December, at the end of a three day hearing, Davies AJ ordered that there be specific performance of seven contracts entered into by the defendant with various purchasers of units at 14 Chapman Street, Werrington, NSW. The plaintiffs were the purchasers under those seven contracts. His Honour declared that the purported rescission by the defendant was invalid and of no effect.

2 The orders were duly entered on 6 May 2002.

3 After the hearing had finished, the Master was asked to consider various motions by the defendant which were dismissed by the Master in the early part of this year.

4 After that nothing happened, apart from the order being formally taken out.

5 By motion filed 30 August 2002, the defendant sought an order that the decree for specific performance be discharged. The basis for this application was that the units, the subject of the decree, were being built by the defendant and it had been informed by the company with which it thought it was insured, that it was not covered. Accordingly, it could not give the appropriate certificate in respect of the building. There is no need to be more explicit than this.

6 The motion came before me on 5 September 2002. Ms Thurai Rajah appeared for the plaintiffs, and Mr Warren for the defendant.

7 I ruled that the motion was premature. The reason why I so ruled was that unless shortly after the decree for specific performance there is agreement between the parties (as occurs in perhaps 98% of all cases), it is necessary to apply to a Master for directions as to the implementation of the decree. Then, if there is a default at any particular step, one can see whether the decree should be discharged because of impossibility or otherwise, or enforced in the appropriate way.

8 The parties accepted this ruling and then worked out a series of directions which I made on 6 September 2002. These directions involve the purchasers electing by a date fixed by a formula, whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AJDJ Pty Ltd v Pacificwest Developments Pty Ltd

Details

AGLC: AJDJ Pty Ltd v Pacificwest Developments Pty Ltd [2002] NSWSC 842
Case: [2002] NSWSC 842
Decision Date: 11 September 2002

CaseChat Overview and Summary

In the case of AJDJ Pty Ltd v Pacificwest Developments Pty Ltd, the dispute arose between the plaintiff, AJDJ Pty Ltd, and the defendant, Pacificwest Developments Pty Ltd, concerning a property sale. The plaintiff sought specific performance of a contract for the sale of a property from the defendant. The case was heard by the Supreme Court of New South Wales. The central legal issue before the court was whether the plaintiff could set off costs incurred in relation to the property against the purchase price in the event of a successful claim for specific performance. Specifically, the court had to determine if the plaintiff could deduct costs related to the property from the purchase price before fulfilling its obligation to pay the purchase price.

The court considered the principles of equity and the nature of the remedy of specific performance. It was established that specific performance is a discretionary remedy, and the court would consider various factors in determining whether to grant it. In this case, the court noted that typically, purchasers may set off costs against the purchase price. However, the court had to weigh this principle against the defendant's rights and the specific circumstances of the case. The court concluded that the principle allowing set-off was not absolute and that the defendant's rights as a seller had to be protected. The court held that the plaintiff could not set off costs against the purchase price in this instance.

The court ordered that specific performance be granted in favour of the plaintiff, but the plaintiff must pay the full purchase price without any set-off of costs. The court's decision emphasised the need to balance the interests of both parties and the equitable principles underlying the remedy of specific performance. The final order was that the plaintiff was required to complete the purchase of the property by paying the full purchase price to the defendant.

Orders