Gillespie v Wolseley Investments Pty Ltd (No 2)

[2007] NSWSC 1382

CITATION:	Gillespie v Wolseley Investments Pty Ltd (No 2) [2007] NSWSC 1382
HEARING DATE(S):	9 November 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	9 November 2007
DECISION:	Notice of Motion dismissed with costs
CATCHWORDS:	SPECIFIC PERFORMANCE – supervision of contract – application for orders regulating internal affairs of defendant corporation so as to secure compliance with order for specific performance – internal steps not steps in performance of contract – application refused
PARTIES:	Patricia Maria Gillespie (plaintiff) Wolseley Investments Pty Limited (defendant)
FILE NUMBER(S):	SC 6374/05
COUNSEL:	I Rugless (sol) (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 November 2007

6374/05 Patricia Maria Gillespie v Wolseley Investments Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: On 9 March 2007 I declared that the agreement contained in an agreement of 22 March 2005 between the plaintiff Patricia Maria Gillespie, and the defendant Wolseley Investments Pty Limited, 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 for use of 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 a s 82A review application. I ordered that the defendant use its best endeavours to secure the consent of the Council for use of unit 11 as a residence and, when requested, to sign such authorities and do all such things. I further ordered that, upon the consent being granted, the deed be specifically performed and carried into execution, and granted liberty to either party to apply in the event of any difficulty arising in the implementation of those orders, including for further directions to implement the orders for specific performance.

2 On 28 August 2007, the Woollahra Municipal Council consented to the change in use of unit 11 from a caretaker's flat to a private residence and to internal alterations, but subject to certain conditions contained in the consent. Those conditions included condition A.3, which provided that work must be carried out in accordance with certain specified plans, and condition C.2, which required that the building be brought into partial conformity with the Building Code of Australia and, in particular, that new construction comply with BCA 2007 and recommendations in a BCA Assessment Report, and that the proposed unit 11 be separated from the remainder of the building with a fire rated wall and floor construction.

3 On 10 September 2007, Wolseley’s solicitors purported to give a notice on behalf of the defendant requiring completion of the agreement within 35 days. On 3 October 2007, Ms Gillespie filed a motion, seeking a declaration that the Notice to Complete was invalid and an order that Wolseley satisfy the conditions specified in the development consent so as to allow the Council to issue an Occupation Certificate and, in particular, carry out to the satisfaction of the Council the building work referred to in conditions A.3 and C.2, and proceed with all dispatch and use its best endeavours to do so within a reasonable time.

4 As Woollahra Council consented to those orders in substance, on 19 October 2007, when the matter came before me, I noted that the Notice to Complete was withdrawn and made orders in accordance with paragraphs 2, 3 and 4 of the short minutes dated that day. In those circumstances, it was unnecessary for me to consider whether Ms Gillespie would have been entitled to that relief if the matter had been contested, and it is inappropriate that I go behind the consent orders on that issue now.

5 On 19 October 2007, after the consent orders had been made that day, Mr Rugless, on behalf of the plaintiff, wrote to Mr Legg, on behalf of the defendant, seeking further information, including a timetable for the completion of the required work. Mr Legg answered on 26 October, inter alia that it would be necessary to call a general meeting to discuss which quote to accept and the raising of a levy, which he said would occur as soon as possible. Mr Rugless replied on 29 October, that the company was required to call any necessary general meeting without delay and that should it fail to issue before close of business on 5 November a notice calling the requisite meeting, it should anticipate a further application to the Court. Mr Legg responded on 2 November, that notices convening the meeting had been sent on 31 October 2007. No doubt, Mr Legg was so instructed at the time, but it appears that there was some slight delay while the precise form of the notice – and, in particular, whether it would be a general meeting or a special extraordinary meeting – was addressed; the notice was eventually sent on 1 November 2007.

6 Mr Rugless, having instructions that no notice had been received by his client, filed the present Notice of Motion on 6 November 2007 supported by his affidavit sworn 5 November 2007. By that Motion, Ms Gillespie seeks an order that Wolseley hold a general meeting of its members on 13 November 2007 at a time and place to be fixed by the defendant, and that a resolution be put on behalf of the Board to raise a special levy in such amounts as the Board may consider necessary to meet the costs of the defendant carrying out to the satisfaction of the Council the building work referred to in conditions A.3 and C.2 of the consent.

7 Although the plaintiff's solicitor was in receipt of a letter from the defendant's solicitor to the effect that a notice convening a meeting had been sent, it seems that no inquiry was made before filing the motion to check that assertion when it was about to be disputed. On the present application, the principal argument has been, not what appeared on the face of the evidence to be the issue – namely, whether a meeting had been called at all – but the contents of the notice of meeting; this shift reflects the circumstance that the assumptions which underlay the filing of the motion were not sustained. In my view, the notice was filed prematurely. If it was to be filed on the basis that no meeting had been convened, then at least a communication to Mr Legg to ascertain what had happened was called for. Such a communication would have elicited that there had been a slight delay but that, nonetheless, by 5 November, the notice had been sent. Such a communication would also have elicited the form of the notice and any question about the extent of the resolution sought could have been raised then.

8 In any event, I would not have considered it appropriate to make the orders sought. First, the company is bound by the order for specific performance, and by the more specific orders made on 19 October 2007. What internal arrangements it makes to comply with that order is essentially a matter for it. The direction sought is not a step in performance of the contract inter partes, but seeks to control the internal procedures of the defendant in a way which is unconnected in any legal sense with performance of the contract.

9 Secondly, the notice of meeting – which was, in fact, sent on 1 November with a copy sent to an alternate director on 2 November – contains proposed resolutions to consider and accept quotations for the extension of the existing stairwell to access the staircase in accordance with the Woollahra Council conditions, and to raise a special levy to meet the cost of the works to extend the existing internal stairs in accordance with the development consent. The quotes which the Body Corporate has obtained in that regard refer to fire rating and, in my view, it is tolerably clear that what the Body Corporate proposes to consider includes compliance with all the Council's conditions, and not (as was suggested on behalf of the plaintiff) only condition A.3..

10 So even had the motion not been premature, I would not have made the order sought in it.

11 The Notice of Motion is dismissed with costs.

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