Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Fuller v Albert (No 2) [2021] NSWCA 183 Hearing dates: On the papers Date of orders: 23 August 2021 Decision date: 23 August 2021 Before: Macfarlan JA;
Brereton JA;
Emmett AJADecision: (1) The Alberts have leave to file an Amended Notice of Motion in the form annexed to their written submissions.
(2) Within the times stated in (3) below, the parties may file and serve written submissions (each not exceeding 2000 words in length) as to the appropriate order concerning costs of the appeal and as to whether the proceedings should now be remitted to the Equity Division as stated in the Principal Judgment.
(3) The Alberts are to file their submissions, if any, within three working days of today’s date, Mr Fuller within three days thereafter and the Alberts in reply within a further three days.
(4) The Amended Notice of Motion is otherwise dismissed with costs.
Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – application to reopen appeal under UCPR r 36.16 – whether Court determined the appeal on a ground not pleaded at trial – whether Court found ordinarily implied general obligation in contract to cooperate – Court found particular contractual terms pleaded, the essence of which was cooperation to achieve stated purpose
CONTRACT – remedies – specific performance – whether Court found breach of contract – order for specific performance does not require proof of breach – sufficiently reasonable apprehension of breach may support order for specific performance
JUDGMENTS AND ORDERS – reasons – duty to give reasons – whether Court gave adequate reasons in rejecting contentions of abandonment and unilateral release – matters relied on by parties referred to and rejected – reasons sufficiently explained conclusion reached – standard for reasons depends on nature of case, submissions and issues engaged
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 14.9
Supreme Court Act 1970 (NSW), s 68
Cases Cited: Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
DTR Nominees Pty Limited v Mona Homes Pty Limited (1978) 138 CLR 423; [1978] HCA 12
DW v The Queen [2004] ACTCA 22; (2004) 150 A Crim R 139
Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53
Gautam v Health Care Complaints Commission [2021] NSWCA 85
GC NSW Pty Ltd v Galati [2020] NSWCA 326
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Lawrence v Ciantar (No 2) [2020] NSWCA 186
Ryder v Frohlich [2004] NSWCA 472
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Summers v Commonwealth (1918) 25 CLR 144
Turner v Bladin (1951) 82 CLR 463
Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362
Wolseley Investments Pty Ltd v Gillespie [2007] NSWCA 358; (2007) 13 BPR 24,813
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- AGLC
- Fuller v Albert (No 2) [2021] NSWCA 183
- Case
- [2021] NSWCA 183
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court included whether the appeal had been determined on a ground not pleaded at trial, whether an implied general obligation of cooperation in contract had been found, and whether an order for specific performance could be made without proof of an actual breach, based on a reasonable apprehension of breach. The Court was also required to determine if its reasons for rejecting contentions of abandonment and unilateral release were adequate.
The Court found that the particular contractual terms pleaded by the parties, which encompassed the essence of cooperation towards a stated purpose, were the basis of its decision, rather than an implied general obligation. It clarified that an order for specific performance does not necessitate proof of an actual breach, but can be supported by a sufficiently reasonable apprehension of breach. Furthermore, the Court held that its reasons for rejecting the arguments of abandonment and unilateral release were adequate, as they referred to and rejected the matters relied upon by the parties, thereby sufficiently explaining the conclusion reached.
The Court granted the Alberts leave to file an Amended Notice of Motion, and ordered that parties could file written submissions regarding costs and the remission of proceedings. However, the Amended Notice of Motion was otherwise dismissed with costs.
Orders
Orders of the court
(1) The Alberts have leave to file an Amended Notice of Motion in the form annexed to their written submissions.
(2) Within the times stated in (3) below, the parties may file and serve written submissions (each not exceeding 2000 words in length) as to the appropriate order concerning costs of the appeal and as to whether the proceedings should now be remitted to the Equity Division as stated in the Principal Judgment.
(3) The Alberts are to file their submissions, if any, within three working days of today’s date, Mr Fuller within three days thereafter and the Alberts in reply within a further three days.
(4) The Amended Notice of Motion is otherwise dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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