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Cruise v Cornish

Cruise v Cornish

Case [2023] NSWSC 1126 15 September 2023

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Supreme Court

New South Wales

Medium Neutral Citation: Cruise v Cornish [2023] NSWSC 1126
Hearing dates: 18 August 2023
Date of orders: 15 September 2023
Decision date: 15 September 2023
Jurisdiction: Equity
Before: McGrath J
Decision:
See [133]

Catchwords:
EQUITY — equitable remedies — specific performance — two contracts for the sale of land — whether defendants’ conduct amounted to breach of contract for failure to proceed with all due dispatch to obtain consent of the council to a plan of subdivision — meaning of “all due dispatch” — whether purchasers were ready, willing and able to perform their essential obligations under the contracts — whether the court ought to make an order for specific performance in circumstances where ongoing supervision likely — HELD — order for specific performance of the contracts made

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Adderley v Dixon (1824) 1 Sim & St 607; 57 ER 239
Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75
Australia v MacDonald [2000] NSWSC 553
Bahr v Nicolay (No 2) (1988) 164 CLR 604
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) [2018] NSWLEC 153
Garling v Northern Beaches Council [2022] NSWLEC 1512
Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100
Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220
Klein v McMahon [2017] NSWSC 1531
Lewin v Lewin [2019] NSWSC 380
Mordue v Kroone [2009] NSWSC 255
Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1132
Nobleza v Lampl (1986) 85 FLR 147
Parkes & Anorv Mamo [2016] NSWSC 1129
Pelley v Tebran Pty Ltd [2006] NSWSC 1072
Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146
Progress East Pty Ltd v Randwick City Council [2019] NSWLEC 1029
Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd [2022] VSC 467
Santangelo v Yates Holdings Victoria Pty Ltd [2022] NSWSC 397

Category: Principal judgment
Parties: Patricia Cruise (First Plaintiff)
Nicola Jane Eagle (Second Plaintiff)
Mark Anthony Cornish (First Defendant)
Elvi Kirstan Neeme Wood (Second Defendant)
Representation:
Counsel:
LT Fermanis (Plaintiffs)
M Cornish (Self-Represented) (First Defendant)
Solicitors:
Giles Payne & Co Solicitors & Public Notaries (Plaintiffs)

File Number(s): 2023/00025252
Publication restriction: Nil

index

INTRODUCTION

PROCEDURAL MATTERS

EVIDENCE

ADJOURNMENT APPLICATION

RELEVANT FACTS

Contractual Provisions
Chronology

RELEVANT LEGAL PRINCIPLES

Breach
Specific performance
Ready, willing and able
Ongoing supervision
Modification of development consent

Appointment of trustees under s 66G of the Conveyancing Act

DETERMINATION – APPLICATION OF LEGAL PRINCIPLES TO RELEVANT FACTS

Breach
Specific performance
Appointment of trustees under s 66G of the Conveyancing Act

RELIEF

JUDGMENT

INTRODUCTION

Each of the two plaintiffs, Nicola Eagle and Patricia Cruise, in these proceedings seek orders for specific performance of obligations under two contracts for the sale of land located in…

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 Cruise v Cornish

Details

AGLC: Cruise v Cornish [2023] NSWSC 1126
Case: [2023] NSWSC 1126
Decision Date: 15 September 2023

CaseChat Overview and Summary

The plaintiffs, Cruise, were seeking specific performance of two contracts for the sale of land from the defendants, Cornish. The plaintiffs alleged that the defendants had breached the contracts by not proceeding with all due dispatch to obtain the council’s consent to a plan of subdivision. The matter was heard in the Supreme Court of Queensland. The primary legal issue was whether the defendants’ conduct amounted to a breach of contract by failing to proceed with all due dispatch and whether the plaintiffs were ready, willing and able to perform their obligations under the contracts. The court also had to consider whether specific performance should be granted given the need for ongoing supervision.

The court considered the meaning of “all due dispatch” and found that it required the defendants to use all reasonable and diligent efforts to obtain council approval for the subdivision. The court held that the defendants had failed to act with all due dispatch as they had not applied for approval until the plaintiffs initiated proceedings. The court found that the plaintiffs were ready, willing and able to perform their obligations under the contracts. The court was satisfied that it was just and equitable to grant specific performance as the plaintiffs had substantially performed their obligations and the defendants had failed to do so. Ongoing supervision was considered appropriate to ensure compliance with the terms of the contracts.

The court made an order for specific performance of the contracts, subject to certain conditions and requirements to ensure ongoing compliance. The court emphasised the need for the defendants to use all reasonable and diligent efforts to obtain the necessary approvals for the subdivision. The court also noted that the plaintiffs would be entitled to damages in the event of any breach of the orders.

Orders