Galsa P/L v Vanmeld P/L

[1994] FCA 513

31 3 9v

JUDGMENT No. ,..-----------l -.

~etueenr - First Appellant

S PTIl

LTlITED Second Appellant

And: - First Respondent

-	Second Respondent
NO. @lG 899 of 1992

Betreens -

First Appellant

And: -

Third Respondent

auiudwm	Fourth Respondent
-	First Respondent

be brought to bear in the resolution of outstanding problems.

This matter of very long standing and complexity is before the Court for the third or fourth time since the delivery of the principal judgment. The disputation between the parties shows

no signs of abating despite my plaintive appeal that commonsense

,.".

- 2 -

The continuing absence of this commodity is no better demonstrated than by today's episode.

On 25 mrch orders were made as a consequence of the principal judgment. These orders were in the terms which the parties brought in as flowing from the reasons for judgment. They were not formulated by the Court in some arbitrary or non-consensual way but merely gave effect to the parties8 agreement. The agreement embodied an order 6 which said that if the agreement for the sale of one property took place at a time different to the male of the other, the payment of any balance of the purchase prices was to be effected by allowing it and any adjustments to be paid at a separate and different time.

Today, the Vanmeld interests move for an order that in effect requires the Court to construe order 6 as agreed by the parties. In other words, the Court is in effect being asked to tell the parties what they meant by their own agreement. That in itself indicates that somehow or other and for some reason or other,

cammonsense seems to have eluded this particular piece of	litigation.
Effectively what is required is that contrary to its terms, order
6 be construed as meaning that because a stay has been granted
of the specific performance of one of the purchases, the financial consequences of both contracts must be delayed until the Pull Court has had the opportunity of deciding what should
be done with the appeal. This problem has arisen because of the
tactical approach followed by the Cussen interests. They persisted in a request for a stay of the specific performance of the contract in respect of one of the properties, notwithstanding that a stay was refused in respect of the other. The consequence of that attitude has been that there has arisen the situation that order 6 appears to cover, namely* that instead of there being an inb-ant and simultaneous exch~nge in respect of both properties, one is to take place at a different time to the other. In this circumstance, the parties agreed that there should be a corresponding separation of the financial consequences to flow from the separate settlement of one
purchase .
Such a development must have been within the contemplation of the parties when order 6 was agreed upon. The Cusaen argument that this will have the effect of granting to the Vanmeld interests a property without consideration, meaning that it will obtain a property for no money at any time, is in my opinion quite wrong. If there were any doubt about the matter, it was put to rest by the observation on the record by senior counsel for the Vanmeld
interests, which I repeat for emphasis, that there is no
intention and no desire at all to press before the Full Court that orders should be made which would have that bizarre effect. Clearly it would be nonsensical to do so.
The principal judgment in this matter also makes that situation clear. It was never argued at any stage of the hearing that the Vanmeld interests should obtain the Lansvale property without paying for it and it is inconceivable that whatever the result on appeal the Full Court would formulate an order which would have that effect. In those circumstances it seems to me that this is not at all a case of a property being transferred without consideration but merely that there be a delay in the consideration to be paid by reason of the fact that the Cussen interests sought and obtained a stay in respect of the transfer of the second property.
In those circumstances it is my view that the general proposals made in the motion brought by the Vanmeld interests ought to be upheld. I do not think that it is necessary to make order 2 in the motion. So far as orders 3 and 4 are concerned I will make them provided that the two days proposed is not an unreasonable burden for a f inal settlement of the transfer. I will make order 1 provided there is agreement that the money figures set out there are agreed to. I will make order 5 in the event that there is further obstruction in the giving effect to the judgment of
the Court in the principal matter. I certity that this and the

preceding pages are a tru copy of the

Reasons for Judgm, h r in of his Honour

Justice Einfeld

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