Forster v Harvey

[2006] NSWSC 1113

CITATION:	Forster v Harvey [2006] NSWSC 1113
HEARING DATE(S):	9 October 2006
JURISDICTION:	Equity Divison
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	10/09/2006
DECISION:	Defendant to complete specific performance of contract for sale of land. Defendant to pay costs on the indemnity basis.
CATCHWORDS:	EQUITY [388]- Specific performance- Sale of land- Deposit paid- Purchasers ready, willing and able to complete- Damages inadequate- Held vendor to specifically perform contract for sale of land. (No question of principle).
LEGISLATION CITED:	Civil Procedure Act 2005, s 94 Contracts Review Act 1980
PARTIES:	Bruce Crosby Forster (P1) Janece Helene Blythe Forster (P2) Kathryn Jane Forster (P3) Michael James Walshe (P4) Emma Louise Forster Mitrovski (P5) Tony Mitrovski (P6) Linda Harvey (D)
FILE NUMBER(S):	SC 5941/05
COUNSEL:	G Carolan (P) No appearance for Defendant
SOLICITORS:	Back Schwartz Vaughan (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 9 October 2006

5491/05 – FORSTER v HARVEY

JUDGMENT

1 HIS HONOUR: This is a purchasers' suit for specific performance in respect of a property 14 Court Road, Double Bay, being Torrens system land. The relevant contract is in the 2000 edition of the standard form and was executed in two counterparts on 5 July 2004. The completion date was to be 5 July 2005. The purchase price was $2,925,000. The special conditions provided that there would be released to the vendor 10 percent of the purchase price and that occurred. The contract also provided that the vendor would allow the purchasers the right to lodge a Development Application and Construction Certificate Application immediately and make the land available for surveying purposes. The special conditions also provided that the vendor would be paying any vendor transfer duty and provide a certificate of payment on completion. However, it would appear that that impost is not applicable to the present transaction.

2 There is no mortgage on the property but I do not know what the position is with respect to charges for land tax, et cetera.

3 The plaintiffs' evidence is that they are ready, willing and able to complete and to pay the balance of the purchase price. There is evidence that shortly before the contractual completion date there were conversations between the plaintiffs and their solicitors with the defendant or her husband as to vacation and after an initial agreement to vacate in a short period of time things became stagnant.

4 The defendant filed a defence, the defence being not to deny the allegations made in the statement of claim but to allege that the defendant was entitled to relief under the Contracts Review Act, 1980 "Due to the fact that the plaintiffs have committed a fraud on the defendant in a premeditated and calculated way". It seems that the alleged fraud was somehow or other hiding that the plaintiffs were going to develop the land. This seems a little inconsistent with the special conditions in the contract to which I have referred, but it is of no moment because the defendant did not appear, although duly notified of the trial, and it has proceeded on the plaintiff's evidence alone. I know that the defendant did know about today's trial because she wrote me a letter last week putting in a medical certificate that she was unable to attend. However, for reasons given in a separate judgment this morning, the trial proceeded.

5 The evidence of the plaintiffs shows that there was a contract, they paid a deposit, they are ready, willing and able to complete, damages are not an adequate remedy; accordingly, the court should order specific performance.

6 Mr Carolan for the plaintiffs has handed me a set of short minutes. This requires the defendant to settle the purchase on 1 December 2006. I have concerns that she will not obey this order and it may be necessary for the Court in due course to make an order under s 94 of the Civil Procedure Act 2005.

7 Accordingly, in addition to the orders in the short minutes I order that the plaintiffs on or before 23 November 2006 post to the defendant's last-known address a settlement sheet showing the amounts necessary in the plaintiffs' opinion to complete the conveyancing matter and also details of any deductions they are entitled to make: (a) because of the damages claim to be payable by the defendant in connection with the contract; and (b) the costs of the present proceedings.

8 Further, the plaintiffs are entitled to issue a subpoena if the conveyancing matter is not settled on 1 December 2006 at any time after 1 December 2006 returnable before a Deputy Registrar at 9 am on Thursday 7 December 2006. The matter can then be relisted before me at 9.50 am on Monday 11 December 2006 for the purpose: (i) of making any necessary order under s 94 of the Civil Procedure Act 2005; and (ii) of giving directions with respect to any claim for damages.

9 Mr Carolan asked for costs on the indemnity basis. It seems to me that there never ever was a defence to the claim on the material before the court, further the plaintiffs have been kept out of the land for over a year and it is an appropriate case for costs on the indemnity basis.

10 I make the orders in the short minutes together with the additional orders that I have just mentioned. The exhibits should be kept in my chambers up to 11 December.

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