Gillespie v Wolseley Investments Pty Ltd

[2007] NSWSC 189

CITATION:	Gillespie v Wolseley Investments Pty Ltd [2007] NSWSC 189
HEARING DATE(S):	2 February 2007
JUDGMENT DATE :	9 March 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
DECISION:	Declare that agreement ought to be specifically performed and carried into execution, and that to that end the defendant was and is bound to use best endeavours to secure development consent and, when requested, to sign all authorities and do all things necessary to obtain consent; Order that defendant use best endeavours to secure consent and, when requested, sign all authorities and do all things necessary to obtain consent; Order that upon consent being granted, Deed be specifically performed and carried into execution; Liberty to apply including for further directions to implement order for specific performance, and in the event that within a reasonable time consent not granted, for such order as may appear just; Order that defendant pay plaintiff’s costs.
CATCHWORDS:	EQUITY – Specific performance – circumstances in which specific performance will be ordered before any breach of contract – where contract for sale of share in home unit company is conditional on development approval - when equitable right to specific performance accrues – held, right accrues on making of contract
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 (NSW), ss 82A, 106
CASES CITED:	Bass v Clivley (1829) 48 ER 33 Brown v Heffer (1967) 116 CLR 344 Butts v O’Dwyer (1952) 87 CLR 267 Egan v Ross (1928) 29 SR(NSW) 382 Hasham v Zenab [1960] AC 316 Hunt v Blacktown City Council (1999) 107 LGERA 156 Hunt v Blacktown City Council [2001] NSWCA 216 Kennedy v Vercoe (1960) 105 CLR 521 Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851 Marks v Lilley [1959] 1 WLR 749 Turner v Bladin (1951) 82 CLR 463 Woolworths Ltd v Dubbo City Council (1997) 99 LGERA 334 Snell, Snell’s Principles of Equity, 25th ed. Spry, Equitable Remedies, 5th ed. Williams, Contract of Sale of Land Meagher, Heydon & Leeming, Equity Doctrines & Remedies, 4th ed.
PARTIES:	Patricia Maria Gillespie (plaintiff) Wolseley Investments Pty Limited (defendant)
FILE NUMBER(S):	SC 6374/05
COUNSEL:	J B Whittle SC w J P Redmond (plaintiff) J-J T Loofs (defendant)
SOLICITORS:	Clinch Neville Long (plaintiff) Burridge & Legg (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday 9 March 2007

6374/05 Patricia Maria Gillespie v Wolseley Investments Pty Ltd

JUDGMENT

1 HIS HONOUR: The defendant Wolseley Investments Pty Limited, a home unit company, is the proprietor of an apartment building known as Cliveden at 22-24 Wolseley Road, Point Piper. At present there are ten residential apartments in Cliveden, of which Unit 9 owned by the plaintiff Patricia Maria Gillespie and Unit 10 owned by Ms Carolyn Molnar are located on the uppermost level. Above them, however, within the roof, is an attic apartment, which has been in the past occupied by a caretaker or tenant. By deed dated 22 March 2005, the company agreed to issue to Ms Gillespie 4,100 Group K shares to be created, for a price of $800,000, which would entitle her to occupy the caretaker’s apartment, which has become known as Unit 11. By Clause 4A.1 of the deed, completion was subject to and conditional upon the company obtaining from Woollahra Municipal Council consent to a development application for the use of the apartment as a residence, by 22 September 2005. Clause 4A.2 provided as follows:

The company must proceed with all due dispatch to lodge the development application with Council and will use its best endeavours to secure the consent of the Council. The company will, when requested, sign all authorities and do all things which may be necessary to obtain the approval sought in the development application.

2 Clause 4A.5 provided that nothing in Clause 4A would impose any obligation on Ms Gillespie to meet the cost of any work that Council may require be carried out to the building, other than as part of Unit 11, as a condition to Council consenting to the development application, any such obligation being that of the company. Clause 4A.4 provided that if the development application was refused or had not been determined by Council by 22 September 2005, Ms Gillespie could rescind by a written notice given to the company no later than 14 days after 22 September 2005. However, when it became apparent that development consent would not be granted by 22 September, the parties on 20 September 2005 agreed that in consideration of Ms Gillespie not exercising any right of rescission under Clause 4A.4 if it became available on 22 September 2005, the clause would be amended by substituting for the period of 14 days a period of six months after 22 September 2005.

3 Council refused development approval, but a review application is pending. Both parties agree that, should development approval be granted, the agreement should be specifically performed and carried into execution. Ms Gillespie, however, alleges that the company did not lodge the development application with all due dispatch, and has not used its best endeavours to secure Council’s consent, and has failed to do all things necessary to obtain approval. She claims a decree for specific performance of the deed. The company says that there is nothing more required of it in connection with obtaining development approval, and agrees that if approval is obtained the deed should be specifically performed and carried into execution, but opposes any decree being granted. In short, it says that circumstances warranting the intervention of equity have not arisen.

Background

4 Immediately following execution of the deed, on 23 March 2005, Ms Gillespie’s solicitor Mr Rugless wrote to the company’s solicitor Mr Legg, asserting that, given the nature of the contract and the time constraint provided for under Clause 4, the obligations of the company under that clause were essential, and asking to be told as soon as the development application had been lodged. On 20 April 2005, Mr Rugless wrote again, asking to be informed of the progress of the development application and to be provided with a copy. It seems that on 22 April, Ms Molnar and Mr Munday on behalf of the company inspected the Council’s records in order to ascertain whether they could establish that residential use was an “existing use” of Unit 11. On 20 May, Mr Rugless telephoned Mr Robinson, the company secretary, and was informed that a letter was expected from the Council confirming its prior approval of the caretaker’s flat as a residence. On 23 May, the Council wrote to Mr Robinson, relevantly as follows:

Thank you for your letter of 27 March 2005 seeking confirmation of the existence of a caretaker’s flat within the roof of the subject building.
Anecdotal evidence from the minutes of Council’s Building and Health Committee on 5 December 1955 reporting on a proposal for the construction of two penthouses suggests that a residential unit had existed in this area before that date.

5 Thus the company had commenced to endeavour to establish whether a residential flat within the roof had previously been approved by 27 March, five days after the date of the deed.

6 On 3 June 2005, Mr Legg advised Mr Robinson that the company should forthwith lodge a development application as required by the contract, attaching the Council’s letter of 23 May “as compelling evidence of the existing use” which he said was likely to make it very difficult for the Council to do anything other than grant consent. On 9 June, Mr Rugless requested from Mr Robinson a copy of the Council’s letter “confirming Council’s prior approval of the caretaker’s flat as a residence” and asking to be kept posted as matters progressed. There is no sign at this stage of protest at exploration of the question of “existing use”, or of delay. Mr Robinson forwarded a copy of the Council’s letter to Mr Rugless on 10 June, advising also that the development application was lodged that day “to use caretaker’s flat as a residence”.

7 On 14 June, the Council wrote to the company, advising that having conducted a preliminary assessment of the development application there was not sufficient information properly to consider it and requesting provision of a site plan and a statement of environment effects within 14 days. On 20 June, Ms Molnar replied on behalf of the company that it did not intend to do any building work on the flat and there would be no environmental impact caused by someone other than the caretaker living there; the response was accompanied by a plan of the building and grounds.

8 Meanwhile, on 15 June, Mr Legg forwarded to Mr Rugless a copy of the Council’s letter concerning “possible existing use”, and informed him that the development application had been lodged, asking whether instructions were anticipated to agree to an extension of time lest it not be determined within the six-month period. Mr Rugless replied on 22 June 2005, asking for confirmation of the date on which the development application had been lodged and for copies, and recording an understanding that it had only been lodged on 10 June 2005. Mr Rugless’ letter observed that if the development application were not determined within 40 days of lodgement it would be deemed to be refused, and if it was lodged on 10 June 2005 Ms Gillespie might prefer to allow that period to elapse before responding on the question of an extension of time. There does not appear to have been any protest at the course that had been taken to that point.

9 Also on 22 June, the Council responded to Ms Molnar’s letter of 20 June, to the effect that the additional information submitted did not satisfy the requirements of Council, that the plan submitted was not a “site plan” as required, and that a compliant statement of environmental effects was also required, within 14 days. On 30 June 2005, the company lodged a statement of environment effects and site plan with the Council. On 1 July, Mr Legg forwarded to Mr Rugless “copies of all of the documents submitted by our client to the Council and all of the documents which have been provided by the Council in response”. The letter suggested that in light of the acknowledgement in Council’s letter of 23 May 2005 that there had been existing use since 1955 it may be that Ms Gillespie might be prepared to proceed with her own application for her proposed renovations to Unit 11 and it might be appropriate for both solicitors to seek further instructions as to a variation of the existing deed to deal with that matter. The letter continued:

We comment that it seems that consideration by the Council of our client’s development application is likely to take a very substantial amount of time which it may well be in your client’s interest to avoid either by way of a variation to the deed or by way of her lodging and pursuing her application at this stage in any event.
We raise these matters without instructions but with a view to trying to move forward without the likely loss of substantial time while our client deals with the Council.

10 Mr Legg was seeking, expressly without instructions, to propose a way in which the matter might be advanced more expeditiously. He suggested, in effect, that Ms Gillespie might be able to rely on “existing use” rights under (NSW) Environmental Planning & Assessment Act 1979, s 106, without the necessity for a further development approval for a change of use of the caretaker’s flat to a residential unit. I do not perceive in this any suggestion that the company would not perform the original contract if Ms Gillespie insisted upon it.

11 Although much was made in submissions of the fact that the development application was designated as one for “change of use” and the proposed development to “use the caretaker’s flat as a residence”, I do not see that that as of significance. The company, as it was contractually obliged to do, lodged the development application. The relevant form required that one of seven boxes identifying different types of development be ticked, and that relating to “change of use” was the most closely applicable. I do not see that as inconsistent with the contention that it was in substance the continuation of an existing use. It may be, as Mr Whittle SC for Ms Gillespie now submits, that any reliance on “existing use” in this context was misconceived, even if Ms Gillespie were not insistent (as she was) on a development approval [cf Hunt v Blacktown City Council (1999) 107 LGERA 156 (Cowdroy J, NSWLEC); affirmed [2001] NSWCA 216; Woolworths Ltd v Dubbo City Council (1997) 99 LGERA 334, 341-3 (Cowdroy AJ, NSWLEC)]. But I see nothing in the way in which this issue was raised and pursued to this point that objectively suggests that the company did not intend to perform its contractual obligation, if that was what Ms Gillespie wanted.

12 On 6 July 2005, the Council wrote to the company advising that the information submitted with the application appeared to be satisfactory and it would therefore be processed. The letter indicated broad timeframes for determination, from two to four months. Following a telephone conversation between Mr Rugless and Mr Legg, on 11 July 2005 Mr Legg provided to Mr Rugless copies of the letters from Council dated 14 and 22 June, copies of the letters of 23 May and 6 July, and the statement of environmental effects and plans lodged with the Council. At this point, therefore, although there had been some delay in lodging the development application, the company had now done all things so far necessary on its part to obtain the development approval.

13 On 25 August 2005, Mr Robinson informed Mr Rugless on the telephone that Council had a problem with the step leading from the main internal staircase in the building to the external steps that gave access to Unit 11. On 30 August, Mr Rugless on behalf of Ms Gillespie wrote to the Council, advising that his client was the purchaser and that subject to the outcome of the development application she intended to submit an application for building work to be carried out within the existing caretaker’s flat and adjacent roof space, relating to the use of the area as a two or three bedroom residence. The letter proceeded:

For that reason, it is essential that Council have regard at the present development stage to all relevant safety and amenity factors, including car parking space, impacting on the proposed use of the premises as a residence. Of particular concern is the question of access. If it is conceivable, for example, that lack of internal access could adversely affect an application for building work within the existing “caretaker’s flat” our client’s legitimate position is that the lack of internal access is an issue to be resolved now in application number DA350/2005.

14 Six photographs of the present arrangements for access were enclosed, and an offer made to provide information about the proposed construction application.

15 Mr Rugless had a telephone conversation with Mr Legg on 14 September. Mr Legg said that he had no difficulty with Mr Rugless talking directly to Mr Munday, who had become chairman of the body corporate. Mr Rugless said that rather than extending the 22 September date “we prefer that we extend the rescission date and leave 22/9 in place – that would give us the opportunity to work together and maybe look at our own application – ‘all for the general good’”, to which Mr Legg agreed.

16 On 16 September, Mr Rugless spoke directly to Mr Munday. Mr Rugless noted that it was a “very good conversation”. Mr Munday apparently said that he had been told by Council that the approval should be through in two to three weeks, that there would be a fire order, but that he thought that everything would be okay, and was happy to extend the rescission period “up to six months if that’s what you want”. By exchange of letters on 19 and 20 September Mr Rugless and Mr Legg agreed that Clause 4A.4 in the deed be amended by removing the words “14 days” and substituting the matter “six months”.

17 On 20 September, the Council made a request of the company for additional information, that it provide details of works proposed to be carried out to the subject flat, and details of works proposed to be carried out to the building to provide access and egress to and from the subject flat that would comply with the provisions of the building code, within 14 days. On the same day, the Council gave to the company notice of intention to give an order that the company prepare and submit within 60 days a report and detailed plans of works considered necessary to make provision for safe egress in the event of fire, prevention and suppression of fire and safety of persons, in respect of the whole building, including a proposed timetable for the implementation of works.

18 Three days later, on 23 September, Mr Robinson responded on behalf of the company that there were no proposed works to be carried out to the subject flat, and that the company had already been working in conjunction with Mr Lawrence of the Council and had contracted BCA Performance Pty Limited to prepare the necessary report “that will apart from other matters answer your second question re access and ingress to comply with the Building Code of Australia”. The letter continued, “Could you please confirm in writing or email that you now have sufficient information to enable you to proceed with the DA application”.

19 The Council replied on 28 September 2005, in a letter that was addressed to Mr Robinson – notwithstanding that the letter to which it responded had told Council to contact Mr Munday, as Mr Robinson would be absent on holidays for a fortnight - to the effect that Council was not in receipt of sufficient information to be able to be satisfied that the building complied with the applicable fire safety provisions, and in addition that the proposal contravened statutory development standards under the Woollahra LEP 1995 for maximum floor space ratio and maximum height for development, and that an objection under SEPP No. 1 was required (for which the relevant forms were enclosed). Following a discussion with Mr Munday and Mr Robinson and a site inspection on 27 September, BCA Performance Pty Limited on 28 September submitted a quote for preparation of a report in response to the Council’s notice of intention to issue an order.

20 Mr Munday wrote to the Council on 4 October 2005, that the intent of the development application was not for a change of use, but simply to obtain an acknowledgement that Council had been aware of the existence of a caretaker’s flat since at least 1955, that it had been used as a residence since before 1955, that Council’s consent was sought to the continued use of the flat as a residence in its present format, and that there were no proposed works to be carried out to the subject flat under the DA, although if the sale proceeded and the development consent was given, the purchaser would lodge an application for refurbishment or redevelopment of the flat. The letter went on to address item 2 of Council’s letter (in respect of access to and egress from the flat), indicating that dependent upon the purchaser’s plans it could be from the flat below (flat 9, owned by Ms Gillespie), or by extending the existing lift service, or a refurbishment of the external access. The letter concluded: “I trust that this further information will enable Council to properly consider the DA and for an early decision to be made”.

21 I do not accept the suggestion that Mr Munday’s letter of 4 October 2005 was, in effect, a refusal to provide details of works proposed to be carried out to provide access and egress from the subject flat compliant with the building code. Mr Robinson’s letter of 23 September had indicated that BCA’s report would address that matter. Mr Munday’s letter indicated that access and egress would be, as a minimum, via a refurbishment of the existing means.

22 On 6 October 2005, Mr Rugless wrote to Mr Robinson, suggesting that an application to extend the 14-day time limit for a response should be made as a first step, and enclosing an application to peruse plans previously lodged relating to the building for the company’s consent and return. Mr Rugless also requested a copy of the Council’s 1955 minutes if held, or a reference to the 1955 development application. It does not appear that Mr Rugless at that stage thought that questions relating to “existing use” were irrelevant.

23 On 11 October 2005, Mr Legg wrote to the Council, requesting a 28-day extension of time. On 17 October, Mr Rugless wrote to Mr Legg:

We note that you have requested Woollahra Council not to take any action to refuse the company’s development application prior to 8 November 2005 to enable the company to respond to matters raised by Council.
While reserving all of her rights and entitlements under the deed of agreement, our client has not exercised those rights while the company has been taking recent steps to comply with its obligations under the agreement.
We are concerned, however, that should Council grant the requested extension to 8 November 2005 and its requirements still have not been satisfied there is a very real likelihood that the company’s development application will be refused.
We stress, therefore, the urgency with which the company should address Council’s requirements in the context of the agreement and the writer will make himself available at short notice to attend the meeting referred to in your letter dated 11 October and in our telephone conversation on 7 October 2005.

24 It is of some significance that that letter apparently acknowledges that the company had been taking steps to comply with its obligations under the agreement.

25 Also on 17 October, the Council wrote to Mr Legg, in effect granting the requested 28-day extension. On 21 October 2005, Mr Rugless wrote to Mr Legg, recording a conversation on 18 October in which Mr Rugless had:

… underlined your client’s obligation under Clause 4A of the agreement to use its best endeavours to secure the consent of Woollahra Council to your client’s development application for the use of the existing caretaker’s flat as a residence. The obligation clearly extends to your client lodging an appropriate development application and providing the Council with all information requested by it to enable a proper determination of the application.
In that regard we note that Council wrote to the company on 20 and 28 September 2005 requesting specific information. We understand, however, that rather than intending to provide that material, the company has settled its position as being:

1. Contrary to Council’s view, the company asserts that there is no change of use involved;

2. The company does not accept that any work need be carried out as a condition to the Council consenting to the company’s application;

3. The company is “raising funds” to carry out fire work required by Council; and

4. Any building work will be the subject of a later application.
We assert, as discussed on 18 October 2005, that your client is not using its best endeavours as required under the agreement by dismissing the Council’s requests for appropriate information in relation to the proposed use of the area occupied by the ‘caretaker’s flat’ as a residence.
…
Should your client not comply with its contractual obligations then our client must look to enforcing her rights as appropriate under the agreement.

26 Mr Legg responded on 1 November 2005, that the letter incorrectly recorded the company’s position, that in the conversation of 18 October it was not indicated that the company had formed any settled position concerning the matters raised by the Council in its letters of 20 and 28 September, that the Council had granted an extension of time, and that the company was giving consideration to the course that it intended to take:

However, it needs to be made absolutely plain that there has been no failure whatsoever on the part of the company to use its best endeavours to proceed with the development application seeking consent for the use of the caretaker’s flat as a residence.
The company is currently taking advice concerning the best approach to take with Council. You can be assured that the Council will be informed at the earliest possible time and before the expiry of 28 days from 11 October 2005 of the company’s intentions.
… The company has always been aware that the Council will require work to be carried out in relation to fire safety. The notice of intention to give a fire order dated 20 September 2005 is the first formal step by the Council on that course. The company will meet its obligations in all respects in relation to the issue of a fire order.

27 On 3 November 2005, Mr Rugless wrote to Mr Legg, recording his understanding that the company had not enquired of Council what specific material was required to satisfy Council’s notice of 28 September 2005, and asserting that such lack of inquiry did not demonstrate that the company was using its best endeavours as required by the deed. However, it is quite unapparent why such inquiry should have been made, in circumstances where the requirements of the notice were detailed and specific. The letter continued:

To avoid any doubt, would you please confirm, as appears to be the case from your letter, that the company now asserts that it has no obligation to submit or amend a development application in a form which Council has or may request if that form involves the term “change of use”.

28 While it is true that in Mr Legg’s letter of 1 November 2005 he had asserted that the application for consent was “for the use of the caretaker’s flat as a dwelling. Under the deed it is the obligation of the company to apply for consent to that use, not a change of use”, the argument is beside the point, as the requisite development application had been lodged.

29 On 4 November 2005, Mr Legg responded, enclosing copies of letters from Council dated 20 and 28 September, and a copy of a letter to Council of 4 November requesting a further extension to enable materials to be compiled for submission to the Council. This was in light of the company’s desire to inspect the Council-approved plans for the original building, which was anticipated to occur early the following week. However, on 14 November 2005, Mr Saszczak of the Council told Mr Rugless that he could not find any record of receipt of a request for an extension of time.

30 On 16 November, Mr Munday circulated a memorandum to the company’s management committee. The memorandum recorded that the sale of the caretaker’s flat had been approved for the purpose of raising funds to cover the cost of urgent maintenance and improvements and hopefully leave a surplus for a sinking fund. What was initially thought to be the simple matter of obtaining a development approval in the light of the apparent admission of a recognised existing use in Council’s letter of 23 May 2005 had become difficult. There were various pressing maintenance works (unrelated to Unit 11). The memorandum concluded:

Do we hold out until Woollahra Council approves our development application to enable us to complete the sale to Ms Gillespie and use the proceeds of the sale to carry out maintenance works? This may well be some time off yet and it may be that Ms Gillespie might rescind under the deed due to the delay. Should the sale not proceed, then it would be necessary to raise a large amount of money to implement the maintenance program by a call on the shareholders. Such a call would need to be in the vicinity of $30,000 to $50,000 for each of the ten flats but could possibly be spread over two years.

31 There is nothing in this memorandum to suggest anything other than that the Company wished for the sale to Ms Gillespie to proceed, and to obtain the development approval for that purpose.

32 On 17 November, Council issued a notice of determination of the development application, refusing consent for the reason that insufficient information had been provided in relation to fire safety provisions for Council to satisfactorily determine the application. On 23 November, Mr Legg informed Mr Rugless of the Council’s determination, enclosing a copy, and continued:

The company takes the view that refusal has been issued prematurely and on the basis of a misapprehension as to the nature of the development application. As you know our client asserts that the application is to confirm the use of the caretaker’s flat as a residence whereas the Council has characterised it as a “change of use”. Our client has been advised that it is essential to review the original plans referred to in our letter of 4 November 2005 before determining how to proceed with the application. Obviously our client is now left with either a review application under s 82A of the Act or an appeal to the Land & Environment Court under s 97 of the Act.
…
As you know the Council has previously acknowledged that there is “anecdotal evidence” of occupation of the caretaker’s flat as a residence. In those circumstances our client remains confident that given sufficient material based on the original Council approved plans and an opportunity to reconsider the application that our client will be able to obtain the development consent envisages by the deed between our respective clients.
However the determination by the Council leaves your client with the right to rescind. You will no doubt let us know if your client wishes to exercise that right.
We are instructed to advise that our client remains committed to pursuing the issue of a consent whether by way of a review or an appeal to the Land & Environment Court. To that end we are instructed that our client is also engaging the services of BCA Performance Pty Limited to provide reports to it for submission to the Council to deal, in particular, with the proposed fire upgrade order.

33 Also on 23 November, Mr Legg wrote to BCA, in response to BCA’s submission of 28 September, advising that the company wished to proceed to engage BCA to carry out the work referred to in that letter (in particular, to obtain advice and a report for submission to Council to deal with the proposed fire order), and:

There is a further matter upon which our client would also like a report to be prepared in relation to the caretaker’s flat known as flat 11, dealing specifically with that flat and setting out precisely what measures need to be taken in relation to it in the event that it is to be continued to be used as a residence.

34 BCA submitted a fee proposal for the additional work on 7 December, and Mr Legg responded accepting the proposal on 17 January 2006. Meanwhile, Ms Gillespie instituted these proceedings on 19 December 2005.

35 BCA thereafter provided two reports, a fire safety upgrade assessment report in respect of the entire building (which appears to have been completed on 3 February 2006), and a report in respect of Unit 11 (which appears to have been completed on 31 January or 1 February 2006). On 8 March, officers of the company met with Mr Koloadin of BCA to discuss and obtain an explanation of the report.

36 Meanwhile, in a letter dated 13 February 2006 to Mr Rugless (apparently responding to some challenge to the authorisation of the defence), Mr Legg maintained:

Lest it appear unclear we reiterate our client’s position which is that it remains absolutely committed to obtaining a development consent as is required under the deed. In that regard we again refer you to our letter of 23 November 2005 to which we note no reply was received before your client instituted the current proceedings. Our client is dismayed that the proceedings have been instituted in those circumstances and is unable to discern any proper reason for the proceedings. Our client is committed to alternative methods of resolving any dispute and in that regard mediation is its preferred option.

37 On 14 March 2006, Mr Legg wrote to the Council, seeking a review of the determination to refuse the development application pursuant to Environmental Planning & Assessment Act, s 82A, and enclosing a copy of the BCA report relating to the entire property, but not that relating to Unit 11. Council responded by letter dated 17 March 2006, advising that the application could not be processed as it was not accompanied by the appropriate form of application, nor details of works proposed to be carried out to the caretaker’s flat in relation to the fire safety upgrade report and payment of relevant fees. Copies of the appropriate application form were enclosed.

38 Why the Unit 11 report had not been provided is not apparent. It appears that a review application in the appropriate form was not lodged promptly after the Council provided the appropriate forms as the Company wished to obtain advice as to its position and how best to proceed, and further to investigate the “existing use” issue. On 13 May, Mr Munday circulated a memorandum to the management committee. He referred to a recent conversation with Mr Legg, and continued:

David advised me that he has been in discussions with John Koloadin, our fire advisor, in relation to his preparing a fresh report dealing specifically with the fire safety aspects of the flat and access/egress question which seems to be the real issue with Woollahra Council. Mr Koloadin has now come to the conclusion that the Council are not going to be moved unless the flat has direct access to the main internal staircase – this means extending the internal stairs to the flat level. This both surprised and disappointed me as it had been Koloadin’s original suggestion that an extension of the main stairs would not be necessary if a landing was constructed accessing the stairs from the stained glass door to the rear stairs leading to the flat. Apparently Council now contends that the steep steps leading to the flat are unacceptable and it is for this reason that he now recommends the extension of the main internal stairs as the only realistic solution.
… I pointed out to Koloadin and to David Legg that by extending the main internal stairs it would be necessary to use some of the existing floor space of the flat as the stair would come out somewhere near the present kitchen area. This could be a problem for Wolseley regarding the agreed sale price but was not mentioned by Gillespie’s brother when he suggested extending the main stairs in his telephone conversation with me last October. All he said was that Pat had plans for extending the stairs for about $12,000 – his words were … “by spending $12,000 you would get the $800,000”. I suppose that statement is fairly accurate – it is only $1,200 for each shareholder.
Koloadin also indicated that if Council agreed that the extension of the main stairs to give access/egress to the flat would be sufficient to issue the development consent it would not mean that Wolseley had to undertake the work immediately. Council’s consent would be subject to the work being completed before the flat could again be used as a residence. This, of course, would be at the time of any development of the flat by Gillespie whose plans would incorporate the extension of the main internal stairs... Wolseley would, under the terms of the deed for sale, be required to meet the cost of such work.
… I also discussed with David Legg the alternative available to Wolseley:

1. Relying on the advice suggested by Mr Justice Roddy Meagher that the letter from Woollahra Council dated 25 May 2005 which acknowledged the existence of the flat since prior to 1950 was sufficient to satisfy the requirement in the deed for the use of the flat as a residence. The question is whether this advice is right or wrong – at this stage it is simply his opinion and might well not be accepted by the judge should the matter go to court. How confident are we that it is right? Or,

2. An appeal to the Land & Environment Court. The best advice I have, and with which I agree, is that unless one is 100% certain of success, which unfortunately I am not, this should be avoided. Whilst I am also not certain Wolseley would fail I am not prepared to gamble a great deal of money on an action I would only be hopeful of winning.
Having considered this matter very carefully I am of the opinion that it would be sensible for us to run with the idea of an extension of the main internal stairs as the access/egress to the flat, possibly saving ourselves further aggravation and put, as difficult as it may be, the past behind us, sell the flat to Gillespie and then be in a position to be able to afford to improve our property for the benefit of all.

39 Again, this indicates nothing contrary to an intention and desire to proceed with the sale and doing what was necessary to obtain the development approval for that purpose.

40 In a telephone conversation on 17 May 2006, Mr Rugless pointed out to Mr Legg that the report for Unit 11 was still not with Council, when clearly that was what Council required, and, noting that Council had rejected the s 82A application as incomplete, asked why he had not been given copies of that rejection or the “Unit 11 report”.

41 In a subsequent memorandum, apparently circulated some time after 29 June 2006, enclosing a copy of an advice from Mr Meagher QC to the effect that the existing use of the caretaker’s flat was sufficient compliance with Clause 4A.1 of the deed, Mr Munday wrote:

What Ms Gillespie has been after all along is for the company to be responsible for the cost of extending the main internal staircase to the roof area. You will recall that this is one of the things she sought during the contract negotiations and constantly brought up after contracts were exchanged. You will also recall that the board of directions (ex Ms Gillespie) discussed the matter of the internal stairs during our deliberations on the terms of the contract and it was unanimously decided that the company would not be responsible for extending the stairs. However, it was never our intention that the stairs could not be extended but that it was a matter that should addressed by Ms Gillespie in her plans for the rebuilding/refurbishment of the caretaker’s flat depending upon what she had in mind for access to and egress from the proposed development of the caretaker’s flat. The only obligation on the company was to obtain Woollahra Council’s consent to the continued use of the existing caretaker’s flat as a residence. It was at Woollahra Council’s direction that we had to seek such consent by way of a development application.
… David Legg advises that we now proceed with the review application and I commend his advice to all directors.

42 In an advice to Mr Munday of 29 June 2006, Mr Legg expressed concurrence with Mr Munday’s view that it would be preferable for the company to devote its resources to lodging the review application as soon as possible, and to obtain some preliminary sketch designs of an internal extension to the staircase. He suggested that those plans be obtained and the review application lodged together with the BCA reports as soon as possible. He suggested that the most orderly, cost effective and systematically sensible approach was to pursue the review application, notwithstanding Mr Meagher QC’s views.

43 I can see in this material no evidence of any contemplation on the part of the company that it would not proceed to obtain the consent required by Clause 4A.1. Nor does it demonstrate that the company was seeking to avoid having to bear the costs of extending the internal staircase: to the contrary, the material suggests to me that the company recognised that it would have to do so if that were a condition of the consent which it was obliged to get.

44 On 5 July 2006, the Council advised Mr Robinson that it had no fire order outstanding on the property, as the notice of intention dated 22 September 2005 had been satisfied by the BCA report, but assessment of the report had yet to be finalised. However, this says nothing as to the separate issue concerning access and egress for Unit 11.

45 In a telephone conversation on 24 July 2006, Mr Legg told Mr Rugless that the BCA Unit 11 report would “shortly be sent to Council as part of relodging the review application”. On 18 August 2006, officers of the company met with officers of the Council – Mr Lawrence, who was responsible for the fire safety issues, and Mr Saszczak, who had been responsible for the development application. At that meeting, the BCA report on Unit 11 was provided to the Council. They advised that the company should apply for a s 149A Building Certificate in respect of the caretaker’s flat, and that application was lodged the very same day. On 16 October 2006, the Council issued a s 149A certificate in respect of the caretaker’s flat. Such certificate precludes the Council from making an order under the Environmental Planning & Assessment Act requiring the building to be repaired, demolished, altered, added to or rebuilt in relation to matters existing or occurring before the date of its issue, and for a period of seven years thereafter in relation to matters arising only from deterioration as a result of fair wear and tear, but does not prevent the Council from making a fire order.

46 On 15 November 2006, Mr Legg lodged a review application under s 82A, noting that since the refusal, documents prepared by BCA had been lodged with Council and requesting that Council review its refusal and grant consent to the application forthwith. Reference was made to the use of the flat as a residence since 1937, and to the s 149A certificate. Although the letter concluded by asking that if on consideration the Council took the view that development consent was not necessary to permit the continued use of the flat as a residence, it provide a letter to that effect, it is clear that the substance of the application was to seek development consent, with the request for a letter confirming that it was unnecessary, offered as an alternative, “fall back” position. Although Ms Gillespie complains that the letter was not accompanied by the BCA Unit 11 report, that report had already been provided to the Council. Even if it had not been provided to the officer who had been involved in the assessment, it had been provided in his presence.

47 Council acknowledged receipt of the review application on 22 November 2006, and in contrast to its responses to the previous applications, did not suggest that there was any outstanding information. A Council officer inspected the flat in connection with the application on 16 January 2007.

48 On 11 December 2006, Mr Legg wrote to Mr Rugless, as follows:

As we see the position, the defendant still remains (and has always been) prepared to transfer the shares in exchange for payment as provided by the deed dated 22 March 2005.
The only issue is that of the need to obtain a development consent as provided by Clause 4A of the deed. In that regard we see there to be two alternatives:

1. Either existing use rights to use the caretaker’s flat as a residence exists, in which case there is no need to obtain a development consent to establish this. In that regard we enclose an advice of Meagher QC to that effect.

2. Alternatively, and in the unlikely event that such advice is incorrect, we understand that the Council is currently considering the review application lodged by the defendant and we are hopeful that it will shortly grant such an application.
In either of these two circumstances it appears to us that there is no barrier to completion of the contract (except of course in circumstances where Council refused the application altogether, in which case your client has the right to rescind).
It is however important for our client to know whether you accept the validity of the existing use rights, or whether you contend a development application must be obtained. Please let us know your position in this regard.
Having regard to the above, the relief sought might be viewed as follows:
a. As regards Order 1, there is not and never has been a dispute between the parties that the agreement should be carried into execution and specifically performed;
b. As regards Order 2, this cannot be granted as the application has already been lodged, and had been lodged prior to the commencement of these proceedings.
c. As regards Order 3, it is otiose, as the application has now been completed and refused.
d. As regards Order 4, it is likewise beside the point, unless it is understood to refer to the review application, which we are actively seeking and are hopefully will be obtained prior to the hearing of this matter on 2 February 2007.

49 Against that background, the essential issue is whether a decree for specific performance should be made. Neither party contends that the contract is not one of which specific performance would be granted, nor that any of the ordinary “defences” to specific performance is available. The sole issue is whether the circumstances are such as to justify the intervention of a court of equity.

50 A breach of contract is not an essential element in a suit for specific performance, which unlike an action for damages does not depend on breach, but on the mere existence of the contract, and with circumstances that justify the intervention of equity to grant a decree [Hasham v Zenab [1960] AC 316; Snell’s Principles of Equity, 25th ed, 531-2]. As Dr Spry explains, in Equitable Remedies, 5th ed, p77:

If a party to a contract wishes to sue for legal damages in respect of a breach of one of its terms, he will not succeed unless that breach has taken place, and accordingly a right of action has arisen, by the time of commencement of the material proceedings. It is, of course, sufficient that there should have taken place an anticipatory breach, as opposed to an actual breach, yet there are many cases where it appears that the defendant has threatened not to perform part of a contract but where no anticipatory breach has taken place. So one party may have announced his intention of fulfilling his obligations apart from a particular inessential breach of those obligations, that is, a breach other than one on the absence of which the obligations of the plaintiff are intended to depend or on the occurrence of which a right to rescind would arise. In such cases there is no remedy at law until the breach in question has in fact occurred. But in equity the position is entirely different. An order of specific performance generally requires the defendant to carry out in specie every term, whether or not it is a condition or essential term, and accordingly wherever a breach has occurred or there is in the circumstances a sufficient likelihood of the occurrence of a breach to render it desirable that the interests of the plaintiff should be safeguarded by the court, an order of specific performance will be granted if otherwise appropriate. So it has been said that “proceedings for the specific performance of a contract which is of such a kind that it can be specifically enforced can be commenced as soon as one party threatens to refuse to perform the contract or any part thereof or actually refuses to perform any promise for which the time of performance has arrived”. … Further, it is not essential that there should have been an explicit threat not to perform the material obligation. There must be more than a theoretical or remote possibility of a breach, but otherwise a greater or lesser probability that there will be a failure to perform may be found to be sufficient in the general circumstances; and in particular the degree of probability of a future breach that must be shown before the court will intervene depends on the extent of hardship that the plaintiff may suffer if the breach occurs and on any other such matters that bear on the justice or injustice of granting relief immediately.

51 Will equity grant a decree in the absence of a reasonable apprehension that the defendant will not perform the contract according to its terms?

52 In Bass v Clivley (1829) 48 ER 33 [see also Snell’s, 530], the plaintiff sued for specific performance of a contract by which he had agreed to lend the defendant £3000 on security of five leasehold homes, alleging that the defendant refused to show her lessor’s title. The court accepted the defendant’s version that the agreement specifically provided that the plaintiff would not call for the lessor’s title, and held that the plaintiff could either have that agreement performed, or suffer the bill to be dismissed with costs. The plaintiff elected to have a decree of specific performance of the agreement as proved, but as the defendant had always been ready willing and able to perform that agreement, which the plaintiff had refused to perform by insisting on being shown the lessor’s title to which he was not entitled, the defendant was awarded costs. Sir John Leach MR said:

Then the Defendant must have her costs. The Plaintiff does not obtain the decree he asks, that he should inspect the lessor’s title. The Court is of opinion, that that was not part of the agreement; and if a Plaintiff insists upon what he is not entitled to, whilst the Defendant has been ready to perform the agreement really entered into, the Defendant is entitled to costs. It is a frequent practice to give costs against a Plaintiff who has a decree – the real question being, by whose fault were the costs incurred.

53 This passage indicates that a plaintiff may be granted a decree, even where no reasonable apprehension of a breach is established.

54 In Marks v Lilley [1959] 1 WLR 749, a vendor had not completed in accordance with a non-essential time obligation, and the purchaser commenced proceedings for specific performance. The contract was thereafter completed, and the purchaser claimed costs. Vaisey J held that the equitable right to specific performance had already accrued, even though time had not been made essential, quoting Williams on the Contract of Sale of Land (1930) (at p132) as saying that the cause of action for specific performance was not a breach of contract, but the duty considered in equity to be incumbent on the defendant of actually doing what he promised by the contract to perform: “It follows that a breach of the contract by one party thereto is not necessarily a condition precedent to the other party’s obtaining an order for its specific performance; though a breach of the contract is usually requisite to induce the court to interfere”. Vaisey J referred (at 753) to a former practice of issuing a writ for specific performance before actual breach as a means of enabling the purchaser to register the action as a lis pendens, to protect the purchaser’s interest pending completion. As to whether the writ was issued prematurely his Lordship said (at 753-4) (emphasis added):

The sole question is: was the plaintiff justified in issuing the writ which he did on February 9, 1959? I think that he was. I quite agree that it seems a futile proceeding in a way; but, as the equitable right had already accrued , notwithstanding that the date for completion had yet to be made certain by the service of the ordinary notice making time of the essence , I think that at the date that the writ was issued there was already in existence a right which the plaintiff was in a position, if he had so desired, to enforce by action.

55 In conclusion, his Lordship said (at 755) (emphasis added):

There has been a certain amount of unreasonableness on each side, but I do not think that I ought to deprive the plaintiff of his normal right to costs, for which there is indeed ample authority, notwithstanding the fact that the difficulties have not been occasioned by any fraud. It rests solely on this: Here is a contract. It has not been completed. The plaintiff is entitled to ask that it should be carried into effect and specifically performed . That is what the plaintiff has done, and I think he was justified in doing it. If only the defendant, when he was asked for costs, had said “All right, tax the costs and I will pay them”, instead of saying he would not pay any costs …, everybody, including myself, would have been saved a lot of trouble.

56 Those passages indicate that the mere existence of a contract that gives the plaintiff an equitable interest in the subject matter is sufficient to justify intervention.

57 In Hasham v Zenab, the defendant vendor repudiated the contract shortly after signing it. The plaintiff purchaser instituted proceedings for specific performance weeks before the date for completion. The vendor arguing that the proceedings were issued prematurely, the Privy Council upheld the purchaser’s claim to an order for specific performance, holding that all that was required (for specific performance) was to “show circumstances which will justify the intervention by a court of equity”. The Privy Council rejected the submission that the proceedings had been brought prematurely (although there was plainly a threatened breach) in terms that suggest that the existence of an equitable interest in the subject matter of the contract is sufficient to attract intervention (at 329) (emphasis added):

Their Lordships are of opinion that the fallacy of the submission consists in equating the right to sue for specific performance with a cause of action at law. In equity all that is required is to show circumstances which will justify the intervention by a court of equity. The purchaser has an equitable interest in the land and could get an injunction to prevent the vendor disposing of the property .

58 Significantly, Hasham points out that an order for specific performance often falls into two parts: the first of a declaratory nature, and the second containing consequential directions, with the first being suitable to a case where the time for performance might not have arrived even at the date of the order - in which case, in the event of subsequent non-performance, the court would not require the issue of a fresh writ before making consequential directions for performance.

59 The authors of Equity Doctrines & Remedies (Meagher, Heydon & Leeming, 4th edition), say [at [20-030]]: “Equity will in some cases intervene with a decree quia timet even though, since no breach – not even an anticipatory breach – has yet occurred, a cause of action for damages has not yet accrued: Hasham v Zenab [1960] AC 316, and see Turner v Bladin (1951) 82 CLR 463”. In Turner v Bladin (1951) 82 CLR 463, the High Court held that it was not a defence to a suit for specific performance that some part of the contract was not immediately performable, and that proceedings for the specific performance of a contract could be commenced as soon as one party threatened to refuse to perform the contract or any part thereof, or actually refused to perform any promise for which the time for performance had arrived: the court can then make a decree that the contract ought to be specifically performed and carried into execution, and can so mould its decree and order such inquiries, accounts and other proceedings under it as may be necessary to carry into effect all the promises of both parties whether presently performable or performable only in the future.

60 Save for the dissenting judgment of Lord Sumner in Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851, 866, that “So far as specific performance is concerned, they must always be cases where there has been an anticipatory breach” – which dictum was not followed by the Privy Council in Hasham v Zenab - I have not been able to find a case in which specific performance has been refused on the ground that there is insufficient reason to intervene in the absence of breach or apprehended breach, although the textbooks suggest that to attract the intervention of equity there must be some realistic prospect of a breach. I conclude that, the equitable right to specific performance arises once the contract is made.

No breach of contract

61 Ms Gillespie alleges that in breach of Clause 4A.2 of the deed, the company failed to proceed with all due dispatch to lodge the development application with the Council, in that it did not lodge it until 10 June 2005, more than eleven weeks after execution of the deed.

62 What is “due” dispatch depends upon the circumstances. The history recorded above shows that officers of the company approached Council on 27 March, seeking confirmation of the existence of a caretaker’s flat; received an apparently encouraging initial response; but were not provided with a formal response until 23 May 2005. If Council had previously accepted the use of the flat for residential purposes, it must have facilitated the development application. Although there was some delay occasioned by waiting for the Council’s response, not sent until 23 May 2005, I am unpersuaded that this was a failure to proceed with “all due dispatch” to lodge the development application; but if I am wrong in that respect and there were a breach, nonetheless the development application was lodged on 10 June 2005, six months before the proceedings were commenced, and by the time proceedings were commenced any such breach had been remedied.

63 Ms Gillespie next alleges that, in breach of Clause 4A.2 of the deed, the company failed to use its best endeavours to secure the consent, and failed to do all things necessary to obtain the approval of the development application, in that it failed to provide the Council with:

a a site plan and statement of environmental effects, within 14 days of Council’s letter of 14 June 2005; or within 14 days of the further request of 22 June 2005;

b details of the work proposed to be performed on the apartment and details of the work proposed to be performed on the premises to provide access and egress, within 14 days of Council’s letter of 20 September 2005, or at all;

c the further information required to satisfy clause 93, within 14 days of Council’s letter of 28 September 2005, or within 14 days of Council’s further letter of 17 October 2005, or at all.

64 As to the site plan and statement of environmental effects, after an initial inadequate attempt on 20 June, a statement of environmental effects and site plan were lodged on 30 June. That was two days outside the 14 days allowed by the letter of 14 June, and well within the time allowed by the letter of 22 June. I am quite unpersuaded that that was a failure to use best endeavours to secure the consent. Nor was it a failure to do something necessary to obtain the approval; the Council’s requirements were satisfied on 30 June 2005. I reject the contention that no site plan was ever lodged; the plans that were lodged with the statement of environmental effects included a site plan and were accepted by the Council as meeting its requirements.

65 As to the details of proposed works, the company responded on 23 September and again on 4 October that no works were proposed to be performed on the apartment. So far as works to provide access and egress, on 23 September the company responded that a report had been commissioned from BCA which would cover that, and on 4 October that a refurbishment of the existing means of access and egress was proposed. Extensions of time were requested to enable the company to consider how best to respond. I do not think that taking time to consider what would be the best way of responding is a failure to use best endeavours to obtain the consent. I accept that there was some delay in formally instructing BCA to proceed, but by 23 November 2005 BCA had been instructed to proceed with the report on the whole building, and also to provide a report in relation to flat 11. That delay appears to have been occasioned by a need to consider how the company would respond to the notice of intention to issue a fire order and the subsequent refusal of the development application. I am quite unpersuaded that this was a failure to use best endeavours to obtain the consent. Nor was it a failure to do something necessary to obtain the approval; the company had given instructions for the necessary reports and all that remained to be done was to accept the quote for the Unit 11 report. Council had already refused the application, at a time when the company had sought an extension of time to respond to the relevant requirements, before the company had been able to respond. I accept that provision of the two BCA reports (or equivalent) was something necessary to obtain the approval, but I do not accept that, when proceedings were commenced, the company was in breach of its obligation to do something necessary to obtain the approval: it was in the course of seeking those reports.

66 Accordingly, I do not accept that when the proceedings were commenced, the company was in breach of any of its obligations under Clause 4A.2.

No reasonable apprehension of breach

67 Nor do I think that there was any reason to apprehend that the company would not perform the contract according to its terms. Although it raised the possibility of reliance on “existing use rights”, it never suggested that it would not pursue development consent (unless, perhaps, Ms Gillespie were content to accept existing use rights). Indeed, ultimately it pursued that course despite having Mr Meagher QC’s advice to the effect that it was superfluous. The evidence overwhelmingly favours the view that the company saw it as in its own interests that the development application, and with it the sale, proceed. True it is that progress has not always been expeditious, but the requirement for “all due dispatch” was in respect of the lodgement of the application only, and I do not think such lack of expedition as there was evidences or amounts to a want of “best endeavours”. Nor was the company in breach of its obligation to do all things necessary to obtain the development approval; the “things” that remained outstanding were underway when the proceedings were commenced. I do not accept that failure to do something within the time limited by a letter from the Council is necessarily a breach of the obligation to use best endeavours, particularly where an extension of time has been sought.

68 Accordingly I do not accept that, when the proceedings were commenced, there were grounds for a reasonable apprehension that the company would not perform its obligations under the deed.

69 Unsurprisingly, the statement of claim does not rely on any matters that have occurred since the proceedings were commenced. It is true that there has been some delay in the prosecution of the review application. It appears that part of the delay was attributable to a desire to obtain earlier records (in connection with “existing use”), a couple of months was taken awaiting Council’s issue of a s 149A certificate (which course Council apparently suggested ought to be taken); and some time was taken in further exploration of what would be required to satisfy the Council in respect of access to and egress from the flat. As I have said, some delay has been involved, but it is not pleaded, and nothing suggests that the company will not perform the contract according to its terms.

Enforceable equitable right to performance

70 But as I have sought to explain, neither breach nor apprehended breach is a pre-requisite to a decree of specific performance.

71 Here, there was an exchanged contract for the sale of shares, which in due course would carry with them an entitlement to occupy a home unit. It is a contract of which equity would ordinarily grant specific performance. Like Vaisey J in Marks v Lilley, I agree that in the absence of breach or apprehended breach, it seems an unnecessary proceeding in a way, but the defendant’s remedy was to submit to a decree and argue the plaintiff’s entitlement to costs. Instead, it has opposed a decree being granted at all.

72 While the need for a decree in the present circumstances seems slight, no hardship to the defendant in granting a decree is apparent.

Conclusion

73 It follows that in my opinion, although when the proceedings were commenced the company was not in breach of any contractual obligation and there were no grounds for reasonable apprehension that it would not perform the contract according to its terms, and although even today – despite some delay in the prosecution of the review application – there are no reasonable indications of any intention on the part of the company to do other than perform the contract according to its terms, nonetheless a right to have the contract specifically performed arose upon exchange, and no discretionary grounds to refuse the remedy have been established.

74 Because the contract is – or at least may be, depending on the consequences, which have not had to be considered in this proceeding, of Ms Gillespie not having exercised her right to rescind within the time limited by the contract - conditional upon the obtaining of development approval, the two-stage approach to a decree of specific performance is appropriate [cf Egan v Ross (1928) 29 SR(NSW) 382, 388; Butts v O’Dwyer (1952) 87 CLR 267, 282-3; Kennedy v Vercoe (1960) 105 CLR 521, 529-31; Brown v Heffer (1967) 116 CLR 344, 349-50]. In accordance with clause 4A.2 of the Deed, the company was and is bound to use its best endeavours to secure such consent, and, when requested, to sign all authorities and do all things that may be necessary to obtain the approval sought in the development application.

75 I am satisfied that the prosecution of the review application is a thing necessary to obtain the approval, and something which reasonable endeavours to secure the consent requires.

76 As to costs, although I will hear the parties if they wish (in which case my associate should be notified by close of business on 12 March 2007), prima facie the case is analogous to Marks v Lilley, where although the proceedings were in a sense unnecessary, the plaintiff was entitled to the relief claimed, and to costs. It is distinct from Bass v Clivley, because in that case the defendant pleaded that she was ready willing and able to perform the contract that was ultimately proved; the plaintiff having sought to enforce a contract that was not proved. The defendant could have submitted to the relief sought, in which case it may have been on strong grounds as to costs, but it did not.

77 Subject to any submissions which the parties may wish to make as to their form, in which case my associate should be notified by close of business on 12 March 2007, my orders are:

1. Declare that the agreement contained in the Deed dated 22 March 2005 between the Plaintiff Patricia Maria Gillespie and the Defendant Wolseley Investments Pty Ltd ought to be specifically performed and carried into execution, and that to that end the defendant was and is bound to use its best endeavours to secure the consent of the Woollahra Municipal Council to the use of the Unit 11 as a residence and, when requested, to sign all authorities and do all things that may be necessary to obtain that consent, including by prosecuting the s 82A review application lodged on 15 November 2006.

2. Order that the defendant use its best endeavours to secure the consent of the Woollahra Municipal Council to the use of the Unit 11 as a residence and, when requested, to sign all authorities and do all things that may be necessary to obtain that consent, including by prosecuting the s 82A review application lodged on 15 November 2006.

3. Order that upon the consent being granted, the Deed be specifically performed and carried into execution.

4. Grant liberty to either party to apply in the event of any difficulty arising in the implementation of these orders, including for further directions to implement Order 3.

5. Grant liberty to either party to apply in the event that within a reasonable time the consent has not been granted, for such order as may appear just.

6. Declare that if it appears upon application made under Order 5 that the consent will not be granted, and for reasons which are not brought about by any act or default of the defendant under the agreement, despite the defendant having used its best endeavours to secure it, and having, when requested, signed all authorities and done all things necessary to obtain it, the agreement is not further specifically enforceable and the Court may give such relief to the parties consistent with these orders as may appear just.

7. Order that the defendant pay the plaintiff’s costs.

8. Direct that these orders not be entered before 14 March 2007.

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