Ciavarella v Polimeni

[2008] NSWSC 541

CITATION:	Ciavarella v Polimeni [2008] NSWSC 541
HEARING DATE(S):	23 May 2008
JUDGMENT DATE :	23 May 2008
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Order for execution of documents by Registrar made prospectively.
CATCHWORDS:	EQUITY [420] – Equitable remedies – Specific performance – Practice – Enforcement of decrees – How enforceable – Order that transfer be executed by nominated person – Power to make anticipatory order.
LEGISLATION CITED:	Civil Procedure Act 2005 s 94
CATEGORY:	Consequential orders
CASES CITED:	Ciavarella v Polimeni [2008] NSWSC 234 Commonwealth Bank of Australia v Gaszewski [2006] NSWSC 772 Folley v Maragioti [No 2] (1972) 9 SASR 9
PARTIES:	Anthony Mark Ciavarella (P) Giuseppe Polimeni (D1) Giuseppa Polimeni (D2) Balkar Singh (D3) Anandjeet Kaur (D4)
FILE NUMBER(S):	SC 1003/08
COUNSEL:	Dr C J Birch SC and S R Coleman (P) No appearances (D1-4)
SOLICITORS:	Tierney & Dowd (P) Self represented (D1&2) Mackenzie & Vardanega (D3&4)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 23 MAY 2008

1003/08 ANTHONY MARK CIAVARELLA v GIUSEPPE POLIMENI & ORS

JUDGMENT

1 HIS HONOUR: In this matter the Chief Judge in Equity on 20 March this year held that the first and second defendants were estopped from denying the existence of a contract for the sale of land: Ciavarella v Polimeni [2008] NSWSC 234. On 3 April 2008 his Honour made a declaration accordingly and ordered the transfer of the land by the first and second defendants to the plaintiff. On the same day his Honour ordered that the order for transfer be stayed “until 13/5/08 or until further order of the Court”. This was erroneously entered as a stay “until 13/02/08”, which was a nonsense, but there is no doubt that the stay was until 13 May. The order must mean until further or earlier order of the Court, otherwise the order will again be a nonsense.

2 The stay expired on 13 May and there is no barrier to the order for transfer being put into effect. The evidence shows, however, that the first and second defendants have not executed and are not likely to execute the documents necessary to effect the transfer.

3 The plaintiff therefore seeks orders to facilitate the transfer, including the execution of necessary documents. The current provision in this regard is s 94 of the Civil Procedure Act 2005. The power under that section to order execution by a person other than the person obliged to execute the documents is enlivened if that person does not comply with a judgment or order directing their execution.

4 In the present circumstances it is not entirely clear that the first and second defendants have not complied with such an order. To ensure that the section is properly enlivened an order should now be made compelling their execution of the necessary documents. The matter is urgent because an arrangement for the Bank, which currently holds the first mortgage over the properties, to discharge the mortgage upon receipt of the purchase price, which is less than the amount owed to the Bank, expires on Wednesday, 28 May 2008.

5 I therefore propose to order the first and second defendants to execute the documents at 11am on Tuesday, 27 May 2008. In default of their doing so, I propose to appoint the Registrar in Equity or Deputy Registrar in Equity to execute the documents in their stead.

6 It is made plain by the decision of Brereton J in Commonwealth Bank of Australia v Gaszewski [2006] NSWSC 772 that an order appointing the registrar may be made prospectively, although there cannot yet be said to be non-compliance by a defendant with the order to execute, “if the circumstances demonstrate the probable futility of any proper request”; see also the decision of Sangster J in Folley v Maragioti [No 2] (1972) 9 SASR 9.

7 The evidence in this case indicates that futility and I am therefore prepared to make an order for execution posited on the probable failure of the defendants to comply with the order now made.

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