Fuller v Albert (No 3)

In *Fuller v Albert (No 3)*, the New South Wales Court of Appeal considered appeals concerning a dispute over a property development and related contractual and mortgage arrangements. The primary dispute involved competing claims between Mr Fuller and Mr Albert regarding the valuation of a property and the terms of a mortgage over a share in a company. The Court of Appeal was required to determine whether to uphold or vary previous orders made by the Court, including issues relating to specific performance, damages, and the remittal of certain aspects of the proceedings.

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.