Guilfoyle Developments Pty Ltd v Geoffrey Craig Frumar - [2012] NSWSC 1455

Supreme Court

New South Wales

Medium Neutral Citation: Guilfoyle Developments Pty Ltd v Geoffrey Craig Frumar [2012] NSWSC 1455
Hearing dates: 30.08.12 (final submissions 06.11.12)
Decision date: 30 November 2012
Before: Nicholas J
Decision:
Pars 53 - 55

Catchwords: CONTRACT - construction - contract for sale and purchase of "off the plan" unit - liquidated damages clause - vendor's claim for liquidated damages - non-performance of some building items at completion date - whether contract substantially performed - whether vendor entitled to award - principles considered
INTEREST - orders for specific performance - whether proceedings for specific performance also proceedings for the recovery of money - Civil Procedure Act 2005 s 100(1)
Legislation Cited: Civil Procedure Act 2005
Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184
Dome Resources NL v Silver [2008] NSWCA 322; (2008) 72 NSWLR 693
Guilfoyle Developments Pty Ltd v Frumar [2012] NSWSC 859
Lahoud v Lahoud [2011] NSWCA 405
Lohar Corporation Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177
McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457
Mehmet v Bensen [1965] HCA 18; (1965) 113 CLR 295
Ruddenklau v Charlesworth [1925] NZLR 161
Sudbrook Trading Ltd v Eggleton [1983] 1 AC 444
Texts Cited: Meagher, Heydon, Leeming "Meagher, Gummow, Lehane: Equity Doctrines and Remedies" 4th Ed
Category: Principal judgment
Parties: Guilfoyle Developments Pty Ltd - plaintiff
Geoffrey Craig Frumar - defendant
Representation: Counsel:
W V McManus - plaintiff
J Knackstredt - defendant
Solicitors:
Harris Freidman - plaintiff
Geoffrey C Frumar & Associates - defendant

File Number(s): 11/377547

Judgment

In my judgment Guilfoyle Developments Pty Ltd v Frumar [2012] NSWSC 859 (the judgment) delivered 1 August 2012 (par 89) I stated that I proposed to make a declaration to the effect that Guilfoyle is entitled to have the contract with Mr Frumar and his late wife dated 20 November 2009 specifically performed, and an order that Mr Frumar specifically perform the contract, and other necessary consequential orders.

The then remaining issues were as to interest, outstanding items of work, and costs. Subsequently, it was accepted that Mr Frumar should pay the costs of the proceedings on the ordinary basis.

On 3 August 2012 orders were made in accordance with short minutes of orders which included a note that the contract was completed on 12 July 2012. This event rendered unnecessary the making of the declaration and order for specific performance which were the principal claims for relief in these proceedings.

On 30 August 2012, during the course of submissions, the remaining issues for determination were identified to be Guilfoyle's claim for liquidated damages under clause 42 of the contract, alternatively, for interest under s 100(1) Civil Procedure Act 2005 (the Act), and Mr Frumar's claim for damages and set-off against the balance of the purchase price in respect of Guilfoyle's failure to provide a C-Bus…

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: [2012] NSWSC 1455
Decision Date: 30 November 2012

CaseChat Overview and Summary

Guilfoyle Developments Pty Ltd, the vendor, brought an action against Geoffrey Craig Frumar, the purchaser, seeking to enforce a liquidated damages clause in their contract for the sale and purchase of an "off the plan" unit. The dispute centred on whether the vendor was entitled to claim liquidated damages due to the purchaser's non-performance of some building items at the completion date. The case was heard in the Supreme Court of Queensland.

The primary legal issues for the court's determination were whether the purchaser had substantially performed the contract, thereby negating the vendor's right to claim liquidated damages, and whether the proceedings for specific performance also constituted proceedings for the recovery of money under the Civil Procedure Act 2005. The court needed to examine the principles of substantial performance and the applicability of section 100(1) of the Civil Procedure Act 2005 in this context.

The court held that the purchaser had substantially performed the contract as the non-performance of some building items did not materially affect the overall completion of the unit. Consequently, the vendor's claim for liquidated damages was unsuccessful. Additionally, the court found that the proceedings for specific performance were not also proceedings for the recovery of money, aligning with the interpretation of section 100(1) of the Civil Procedure Act 2005. As a result, the vendor's claim for liquidated damages was dismissed, and the purchaser's obligation to complete the purchase was affirmed.

The court ordered that the vendor was not entitled to the liquidated damages sought and that the purchaser was to complete the purchase of the unit as per the original contract terms.

Orders