Giddings v Sharp - [2024] NSWSC 344

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Giddings v Sharp [2024] NSWSC 344
Hearing dates: 11 March 2024; 26 March 2024
Decision date: 26 March 2024
Jurisdiction: Equity - Real Property List
Before: Peden J
Decision:
At [42]

Catchwords:
EQUITY — Equitable remedies — Specific performance — Land — Where defendant unlikely to comply with Court orders — Whether consequential orders empowering Registrar in Equity to execute necessary documentation ought to be made
COSTS — Party/Party — Where plaintiff seeking gross sum costs order — Whether sufficient evidence to make gross sum costs order — Whether proposed discount to gross sum amount sufficient

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 94, 98
Conveyancing Rules 2001 (NSW)
Evidence Act 1995 (NSW)
Real Property Act 1900 (NSW)

Cases Cited:
Ahern v Aon Risk Services Australia Limited (No 2) [2022] NSWCA 39
Commonwealth Bank of Australia v Dariusz Adam Gaszewski [2006] NSWSC 77
Hamod v New South Wales [2011] NSWCA 375
Savage v Norton [1908] 1 Ch 290

Texts Cited:
Nil

Category: Principal judgment
Parties: Phillip James Giddings (First Plaintiff in Proceeding 2022/357444)
Julie Ruth Giddings (Second Plaintiff in Proceeding 2022/357444)
Selena Elisabeth Irene Riley (Plaintiff in Proceeding 2022/357447)
Christopher Sharp (Defendant in both proceedings)
Representation:
Counsel:
L Chan (Plaintiffs)
Solicitors:
Wright Law (Plaintiffs)

File Number(s): 2022/357444
2022/357447
Publication restriction: Nil

Ex TEMPORE JUDGMENT

The plaintiffs in these proceedings seek an order to finalise their purchases of six lots of rural land in Mirrool, New South Wales.
Phillip and Julie Giddings and their daughter Selena Riley are the purchasers under the contracts of sale, and the plaintiffs in two separate proceedings, which have been listed for hearing together. The defendant in both proceedings, Christopher Sharp, is the vendor under the contracts of sale entered with the plaintiffs.
The plaintiffs sought and obtained orders for substituted service of the summons and evidence. I am satisfied that Mr Sharp was served. However, Mr Sharp has not filed a defence and has otherwise not participated in the proceedings.
A hearing was listed on Monday 11 March 2024. However, on that occasion the plaintiffs sought to rely on an amended summons that joined the Registrar General and sought relief against him. That proposed amended summons was first provided to the Registrar General on Friday 8 March 2024. It had not been served on the defendant. In those circumstances the plaintiffs sought an adjournment of the hearing in order to put their house in order.
The adjourned hearing was listed for today. The plaintiffs no longer sought to rely on an amended summons. They had sought telephone and email advice from the Registrar General as to how to complete the transfers of the lots into their names. They were directed to using s 94 Civil Procedure Act 2005 (NSW) (CPA) and seeking a PEXA exemption 50.3 of the exceptions list under the Lodgement Rules, Section 12F Real Property Act 1900, which was effective from 11 October 2021.
Because of that advice, the plaintiffs have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 344
Decision Date: 26 March 2024

CaseChat Overview and Summary

Giddings v Sharp involved a dispute over specific performance of a contract for the sale of land between the plaintiff and the defendant. The case was heard in the Supreme Court of New South Wales. The plaintiff sought an order for specific performance, as the defendant had failed to complete the sale of the property as agreed. The plaintiff also requested an order empowering the Registrar in Equity to execute any necessary documentation to complete the sale if the defendant did not comply with the Court's orders. Additionally, the plaintiff sought a gross sum costs order, with a proposed discount to the gross sum amount.

The legal issues before the court were whether an order should be made to empower the Registrar in Equity to execute necessary documentation if the defendant did not comply with the Court's orders, and whether the plaintiff's evidence was sufficient to support a gross sum costs order, with the proposed discount to the gross sum amount. The court considered whether the defendant's likelihood of complying with the orders was a relevant factor in deciding whether to make the consequential orders and whether the plaintiff had provided sufficient evidence to support a gross sum costs order.

The court found that the defendant's likelihood of complying with the orders was relevant in deciding whether to make the consequential orders, but the court was not satisfied that the defendant would not comply with the orders. Therefore, the court declined to make the consequential orders. Regarding the costs order, the court found that the plaintiff's evidence was sufficient to support a gross sum costs order, and the proposed discount to the gross sum amount was reasonable. The court made a gross sum costs order, with the proposed discount.

No further orders were made by the court.

Orders