Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Fuller v Albert (No 3) [2021] NSWCA 226 Hearing dates: On the papers (submissions of 25, 27, 31 August 2021) Date of orders: 23 September 2021 Decision date: 23 September 2021 Before: Macfarlan JA; Brereton JA; Emmett AJA Decision: (1) Vary Order (2) made by this Court on 18 May 2021 to read “Orders 1, 2, and 4 made on 14 July 2020 be set aside”.
(2) Set aside Order (5) made by this Court on 18 May 2021 and in lieu thereof grant leave, to the extent that it be required, to Mr Albert to rely on his affidavit sworn on 11 November 2020, and to Mr Fuller to rely on the affidavit of Jason Wasiak affirmed 20 November 2020, with costs of the motion filed on 11 November 2020 to be costs in the appeal.
(3) Set aside Order (3) made by this Court on 18 May 2021 and in lieu thereof:
(a) Give judgment that the third respondent Matcove Pty Ltd pay the appellant the sum of $393,750. This judgment takes effect on 23 September 2021.
(b) Declare that the sum referred to in Order (3)(a) is a charge on the third respondent’s land comprised in Folio Identifier 1/1097743 at Moonee Beach.
(c) Order that the proceedings be remitted to the Equity Division to take accounts as between Mr Fuller as mortgagor and Mrs Albert as mortgagee of the Mortgaged Share, to order that, upon payment by Mr Fuller within 21 days of the amount certified to be owing, Mrs Albert re-transfer the Mortgaged Share to Mr Fuller, and to determine the costs of the proceedings at first instance on the redemption claim.
(d) Order that Mr Albert pay Mr Fuller’s costs of the proceedings after 26 April 2019 at first instance on the contract claim.
Catchwords: APPEALS – Orders on appeal – Remittal – Whether more appropriate for Court to finally resolve part of the dispute – Where neither party sought remitter – Where Court has all the evidence and submissions – Where Court in best position to understand own judgment – Order for remittal set aside
CONTRACTS – Remedies – Specific performance – Whether to exercise discretion to decline specific performance – Imbalance of rights and entitlements of parties – Impairment of development application – Lapse of time – Difficulty of framing orders for specific performance – Likelihood that ongoing supervision necessary – Land of no greater importance to appellant than its value – Availability of alternative remedies – Specific performance declined – Lord Cairns’ Act damages awarded in substitution for specific performance – Resolution of competing valuations
COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offer of compromise made during hearing – Where appellant only liable for costs if successful solely on basis of offer – Offer not the basis of appellant’s success – No reason for costs not to follow event
COSTS – Party/Party – Exceptions…
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- AGLC
- Fuller v Albert (No 3) [2021] NSWCA 226
- Case
- [2021] NSWCA 226
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal included whether specific performance of a contract should be declined due to an imbalance in the parties' rights, the impairment of a development application, the lapse of time, difficulties in framing specific performance orders, the likelihood of ongoing supervision, and the availability of alternative remedies. The Court also had to consider whether to award damages in substitution for specific performance and how to resolve competing valuations of the property. Furthermore, the Court was asked to determine the appropriate orders for costs, particularly in light of an offer of compromise and whether any errors found were attributable to the successful appellant.
The Court reasoned that specific performance was not an appropriate remedy given the significant imbalance of rights and entitlements between the parties, the potential impairment of the development application, the considerable lapse of time, and the inherent difficulties in framing and supervising such orders. The Court found that the land was not of unique importance to the appellant and that alternative remedies were available. Consequently, the Court declined specific performance and instead awarded damages under Lord Cairns' Act in substitution. Regarding costs, the Court found no reason to depart from the general rule that costs follow the event, as the appellant's success was not solely based on the offer of compromise, and the errors identified were not attributable to the appellant's conduct at trial.
The Court of Appeal varied its previous orders, setting aside certain orders and substituting them with new directions. These included ordering a specific sum to be paid by a third respondent to the appellant, declaring that sum a charge on the third respondent's land, and remitting proceedings to the Equity Division to take accounts regarding a mortgage redemption claim. The Court also ordered Mr Albert to pay Mr Fuller's costs of certain proceedings at first instance.
Orders
Orders of the court
(1) Vary Order (2) made by this Court on 18 May 2021 to read “Orders 1, 2, and 4 made on 14 July 2020 be set aside”.
(2) Set aside Order (5) made by this Court on 18 May 2021 and in lieu thereof grant leave, to the extent that it be required, to Mr Albert to rely on his affidavit sworn on 11 November 2020, and to Mr Fuller to rely on the affidavit of Jason Wasiak affirmed 20 November 2020, with costs of the motion filed on 11 November 2020 to be costs in the appeal.
(3) Set aside Order (3) made by this Court on 18 May 2021 and in lieu thereof:
(a) Give judgment that the third respondent Matcove Pty Ltd pay the appellant the sum of $393,750. This judgment takes effect on 23 September 2021.
(b) Declare that the sum referred to in Order (3)(a) is a charge on the third respondent’s land comprised in Folio Identifier 1/1097743 at Moonee Beach.
(c) Order that the proceedings be remitted to the Equity Division to take accounts as between Mr Fuller as mortgagor and Mrs Albert as mortgagee of the Mortgaged Share, to order that, upon payment by Mr Fuller within 21 days of the amount certified to be owing, Mrs Albert re-transfer the Mortgaged Share to Mr Fuller, and to determine the costs of the proceedings at first instance on the redemption claim.
(d) Order that Mr Albert pay Mr Fuller’s costs of the proceedings after 26 April 2019 at first instance on the contract claim.
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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