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Baeg v Wink Singh Pty Ltd (No 2)

Baeg v Wink Singh Pty Ltd (No 2)

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Case Copied 6 August 2025 65 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Baeg v Wink Singh Pty Ltd (No 2) [2025] NSWSC 873
Hearing dates: 14 July 2025
Date of orders: 6 August 2025
Decision date: 06 August 2025
Jurisdiction: Equity - Real Property List
Before: McGrath J
Decision:
See [188]–[190]

Catchwords:
EQUITY — equitable remedies — specific performance — whether vendor required to seek order vacating uncompleted order for specific performance before terminating contract — where purchaser has repeatedly failed to perform and has repudiated the contract — legal effect of purported termination by the vendor in the face of an order for specific performance — purported termination invalid — where errant purchaser asserts that vendor’s purported termination was accepted as a repudiation of contract
EQUITY — equitable remedies — specific performance — vacating an uncompleted order for specific performance — where innocent party elects for damages in lieu of performance
CONTRACTS — remedies — damages — after repudiation — loss of bargain — other expenses

Legislation Cited:
Local Government Act 1993 (NSW), ss 560(1), 561(a)
Sydney Water Act 1994 (NSW), s 55(1)

Cases Cited:
Aarons v Advance Commercial Finance Ltd (1995) 6 BPR 13,911
Baeg v Wink Singh Pty Ltd [2024] NSWSC 589
Carr v JA Berriman Pty Ltd (1953) 89 CLR 327; [1953] HCA 31
Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54
Construction Technologies Australia Pty Ltd v Doueihi (No 5) [2018] NSWSC 294
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1
Despot v Registrar General of NSW [2014] NSWSC 1002
Dyco Hotels Pty Ltd v Laundy Hotels (Quarry) Pty Ltd [2021] NSWSC 504
El Ali v Tritton [2019] NSWCA 111
Facey v Rawsthorne (1925) 35 CLR 566; [1925] HCA 10
Fu v Bucasia Pty Ltd [2014] NSWSC 325
Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190
Georges v Wieland [2010] NSWSC 1378
Hamdan v Widodo (No 2) [2010] WASC 6
Hong v Gui [2022] NSWCA 245
JAG Investment Pty Ltd v Strati [1981] 2 NSWLR 600
JC Williamson Ltd v Lukey (1931) 45 CLR 282; [1931] HCA 15
Johnson v Agnew [1980] AC 367
Johnson v Perez (1988) 166 CLR 351; [1988] HCA 64
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25
McLeary v Swift [2014] NSWSC 1414
Morrow v Tucker (No 2) [2006] NSWSC 1358
Ng v Filmlock Pty Ltd (2014) 88 NSWLR 146; [2014] NSWCA 389
Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444; [1976] HCA 21
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30
Pratt v Hawkins (1991) 32 NSWLR 319
Riltang Pty Ltd v L Pty Ltd [2004] NSWSC 977
Robinson v Harman (1848) 154 ER 363
Ryan v UPG 322 Pty Ltd [2023] NSWSC 1293
Shevill v Builders Licensing Board (1982) 149…

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.

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Details

Case: [2025] NSWSC 873
Decision Date: 06 August 2025

CaseChat Overview and Summary

In the case of Baeg v Wink Singh Pty Ltd (No 2), the plaintiff sought specific performance of a contract for the sale of property, which had not been completed by the purchaser. The dispute arose from the purchaser's repeated failures to perform and their repudiation of the contract. The court was required to determine whether the vendor was required to seek an order vacating the uncompleted order for specific performance before terminating the contract. Additionally, the court needed to assess the legal effect of the vendor's purported termination in light of the outstanding order for specific performance, and whether the purchaser's acceptance of the purported termination as a repudiation had any legal standing.

The court examined the equitable principles surrounding specific performance and the circumstances under which a contract may be terminated by an innocent party. It concluded that the vendor was not obligated to vacate the uncompleted order for specific performance before terminating the contract, given the purchaser's persistent non-performance and repudiation. The court further found that the vendor's purported termination was invalid in the context of an existing order for specific performance. Moreover, the court ruled that the purchaser's assertion of acceptance of the purported termination as a repudiation did not hold legal weight, as it did not align with the equitable principles governing the matter.

The court awarded damages to the plaintiff for the loss of bargain and other expenses incurred as a result of the purchaser's repudiation and non-performance. This decision provided clarity on the interplay between specific performance orders and contract terminations, and reinforced the equitable principles protecting the innocent party in such disputes. The final orders included the awarding of damages to the plaintiff, reflecting the loss suffered due to the purchaser's actions.

Orders