Developments (WA) Pty Ltd v Price

[2008] WASC 260 (S)

DEVELOPMENTS (WA) PTY LTD -v- PRICE [2008] WASC 260 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 260 (S)
Case No:	CIV:1437/2006	Heard:	29 AUGUST, 19 SEPTEMBER & 21 NOVEMBER 2008
Coram:	McKECHNIE J	Delivered:	13/11/08
Supplementary Delivered:	20/11/08
No of pages:	4	Judgment Part:	1 of 1
Result:	Defendant entitled to offset cost of restoration from purchase price
Category:	B
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Parties:	DEVELOPMENTS (WA) PTY LTD (ACN 008 952 252) LESLIE MATTHEW PRICE
Catchwords:	Decree of specific performance Return of property to state at practical completion Turns on own facts
Legislation:	Nil
Case References:	Developments (WA) Pty Ltd v Whittle-Herbert [2008] WASC 61(S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : DEVELOPMENTS (WA) PTY LTD -v- PRICE [2008] WASC 260 (S) CORAM : McKECHNIE J HEARD : 29 AUGUST, 19 SEPTEMBER & 21 NOVEMBER 2008 DELIVERED : 14 NOVEMBER 2008 SUPPLEMENTARY
DECISION : 21 NOVEMBER 2008 FILE NO/S : CIV 1437 of 2006 BETWEEN : DEVELOPMENTS (WA) PTY LTD (ACN 008 952 252)

Plaintiff

AND

LESLIE MATTHEW PRICE
Defendant

Catchwords:

Decree of specific performance - Return of property to state at practical completion - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Defendant entitled to offset cost of restoration from purchase price

Category: B

Representation:

Counsel:

Plaintiff : Mr P J Hannan
Defendant : Mr N D C Dillon

Solicitors:

Plaintiff : Tottle Partners
Defendant : Wojtowicz Kelly

Case(s) referred to in judgment(s):

Developments (WA) Pty Ltd v Whittle-Herbert [2008] WASC 261(S)


(Page 3)

1 McKECHNIE J: Mr Price's hearing for final orders took place at the same time as that involving Mr Whittle-Herbert: Developments (WA) Pty Ltd v Whittle-Herbert [2008] WASC 261(S). The evidence was similar. Mr Clack, Mr Wilkie and Mr Papas all inspected Mr Price's unit. Each gave a report. I accept Mr Clack's evidence for the same reasons as I accepted his evidence in relation to Mr Whittle-Herbert. I do not accept the evidence of Mr Wilkie or Mr Papas for the same reasons, nor do I prefer the evidence of Mr Tilli over that of Mr Clack for the reasons given in the Whittle-Herbert matter. In respect to the carpets, I prefer Mr Price's evidence on oath over that of comments from Mr Wilkie and Mr Papas.

2 Mr Price is seeking the sum of $15,730. I will make similar orders to those in Mr Whittle-Herbert's case:

1. The agreement dated 16 February 2004 between the plaintiff and the defendant ('Contract') whereby the plaintiff agreed to sell and the defendant agreed to purchase Unit 3 of 41 George Street, Midland being portion of land known as lot 3 on strata plan 45936 and being the whole of the land comprised in Certificate of Title Volume 2601 Folio 437 ('property') be specifically performed and carried into execution.

2. Settlement of the sale of the property will take place on or before 4.00 pm on Friday, 5 December 2008.

3. Settlement will take place in accordance with the contract (except as to cl 3 of annexure A).

4. It is declared that the defendant is entitled to have the property and all fixtures and fittings (including curtains and carpets) restored to their condition at the time of practical completion. To give effect to this declaration it is ordered that the defendant is entitled to deduct the sum of $15,730 (inclusive of GST) from the balance otherwise owing under the Contract at settlement.

5. The plaintiff's action is dismissed.

6. In respect of Supreme Court Action CIV 1791 of 2005 ('caveat action') in which the defendant in this action was plaintiff and the plaintiff in this action was the first defendant:


(a) The caveat action is dismissed.

(b) The plaintiff (in this action) pay the costs of the defendant (in this action), including any reserved costs, such costs to be taxed in default of agreement.

(Page 4)

7. The plaintiff pay the defendant's costs of this action including all reserved costs.