Bull v Wimble

[2003] NSWSC 724

CITATION:	Bull v Wimble [2003] NSWSC 724
HEARING DATE(S):	7 August 2003
JUDGMENT DATE:	7 August 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Windeyer J at 1
DECISION:	Order for specific performance
CATCHWORDS:	VENDOR AND PURCHASER - specific performance
PARTIES :	Murray Leslie Bull (First Plaintiff) Glenn Robert Stewart (Second Plaintiff) Julie Ann Stewart (Third Plaintiff) James Alfred Wimble (Defendant)
FILE NUMBER(S):	SC 4259 of 2002
COUNSEL:	Mr R Charles (Plaintiffs) No appearance (Defendant)
SOLICITORS:	North Shore Lawyers (Plaintiffs) Unrepresented (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

THURSDAY 7 AUGUST 2003

4259/02 MURRAY LESLIE BULL & 2 ORS V JAMES ALFRED WIMBLE

JUDGMENT

1 HIS HONOUR: In this matter the plaintiffs seek an order for specific performance of a contract dated 14 February 2001 under which they as purchasers agreed to buy from the defendant as vendor property known as 97 to 99 Jarrett Street, Wyoming. The date for completion fixed by the contract in the events which happened was 14 February 2002. The vendor has refused to complete.

2 The vendor has not been present in Court this morning, although he had notice of the proceedings and had written to the Court seeking an adjournment, a letter having been sent to him indicating that if he wished to apply for an adjournment he would have to be present in Court to do so. In the circumstances it is appropriate to proceed in his absence.

3 The evidence establishes that the plaintiffs are ready and willing to complete and that the vendor has refused to complete. In those circumstances they are entitled to an order.

I should say that the conveyancers previously acting for them sent a notice to complete in a form which was not really appropriate in that it stated that unless completion took place, the purchasers/plaintiffs would be entitled to terminate the contract and sue for damages rather than to seek an order for specific performance. Nevertheless, by subsequent letter the vendor was informed that proceedings for performance would be commenced.

4 In the circumstances there does not seem to be any possible defence to the claim for performance and I propose to make the orders as sought in the summons.

5 I make the declaration in paragraph 1 of the summons omitting the word "be" where it appears before "specifically" in the second last line of that paragraph. I make the order in paragraph 2. I refer the matter to the Registrar in Equity to fix the time, place and details for completion. I make the orders as sought in paragraph 3 and paragraph 5.

6 I order the defendant to pay the plaintiffs' costs of the proceedings those costs to be on the indemnity basis from 25 June 2003.

7 On the question of costs, the plaintiffs have put into evidence an offer of compromise under which it was proposed that the declaration and order as to specific performance which I have made should be made but that ten weeks be given from today's date for completion and that there be no order as to costs.

8 That is an offer which it would have been in the interests of the defendant to accept, particularly as there does not seem to be any basis upon which the proceedings could be defended.

9 In those circumstances it seems to me that the plaintiffs should have costs on an indemnity basis as from the date of the offer of compromise, namely, 25 June 2003.

10 The exhibits can be returned.

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Last Modified: 08/11/2003