Despot v Registrar General of New South Wales

The case of *Despot v Registrar General of New South Wales* concerned a dispute between a vendor and a purchaser regarding a contract for the sale of land. The vendor sought to set aside an earlier order for specific performance of the contract, which had been made by the primary judge. The vendor's application followed an earlier appeal where the vendor had obtained a judgment for the outstanding purchase price and interest, after the condition for payment of part of the purchase price had not been fulfilled. The purchaser and an incoming mortgagee had subsequently obtained registration of their interests. The appeal was heard by Gleeson and Leeming JJA and Sackville AJA.

The central legal issues before the court were whether the vendor had elected between inconsistent remedies, and whether the rights and obligations under the contract had merged in the money judgment obtained on the earlier appeal. Specifically, the court had to determine if the vendor's actions in seeking to enforce the order for specific performance by obtaining a judgment for the outstanding purchase price, and subsequently seeking to set aside that same order, constituted an election. The court also considered whether the existing judgment, which remained unreversed, precluded the vendor from pursuing relief inconsistent with it.

The court reasoned that the vendor's pursuit of a money judgment for the outstanding purchase price was fundamentally inconsistent with the remedy of specific performance, which requires the completion of the contract. By obtaining and recovering a judgment for the outstanding purchase price, the vendor had effectively elected to treat the contract as discharged by breach and to pursue damages. This election, coupled with the fact that the rights and obligations under the contract had merged in the money judgment, meant that the vendor could not subsequently seek to set aside the order for specific performance. The court held that the relief sought before the primary judge was inconsistent with the judgment of the court on the earlier appeal, which stood unreversed.

The appeal was dismissed, and the appellant was ordered to pay the costs of the second, third, and fourth respondents.