Hillam v Leduva Pty Limited - [2010] NSWSC 1360

CITATION: Hillam v Leduva Pty Limited [2010] NSWSC 1360
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 November 2010
19 November 2010

JUDGMENT OF: Slattery J at 1

CATCHWORDS: EQUITY - equitable remedies - specific performance - contract for sale of land - purchaser let into occupation - fails to pay occupation fees - vendor commences proceedings for possession - proceedings settled with deferral of settlement - purchaser fails to settle on adjourned date - vendor allowed writ for possession on consent judgment - subsequently purchaser obtains finance for purchase - whether plaintiff entitled to relief against forfeiture - whether plaintiff entitled to specific performance - HELD - specific performance granted.

LEGISLATION CITED: Conveyancing Act, 1919, ss 66W, 129
Residential Tenancies Act 1987, s 5
Trade Practices Act 1974, ss 51AA, 87
Uniform Civil Procedure Rules 2005, r 36.16(2)(b)

CATEGORY: Principal judgment

CASES CITED: Foran v Wight (1989) 168 CLR 385
Jobson v Johnson (1989) 11 ALL ER 621
Legione v Hateley (1983) 152 CLR 406
Matthews v Smallwood [1910] 1 Ch. 777
Meadows v Clerical and General Life Insurance Society [1981] Ch. 70
Melacare International Ltd v Daley Investments Pty Ltd (1999) 9 BPR 17,095
Metwally (No. 2) v University of Wollongong (1985) 60 ALR 68
Pioneer Quarries (Sydney) Pty Limited v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 9562
Platt v Ong [1972] VR 197
Rands Developments Pty Limited v Davis (1975) 133 CLR 26
Shiloh Spinners Ltd v Harding [1973] AC 691
Sloman v Walter (1783) 1 Bro CC 418; (1783) 28 ER 1213
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29
Workers Compensation Nominal Insurer v Detailed Flooring Pty Limited [2010] NSWSC 1056.

TEXTS CITED: Butt, The Standard Contract for the Sale of Land in New South Wales, LBC Information Services 1998
Meagher et al, Equity – Doctrines and Remedies, 4th edition (2002) , Butterworths Lexisnexis

PARTIES: Plaintiff- John Frederick Hillam
Defendant- Leduva Pty Limited

FILE NUMBER(S): SC 2010/287070

COUNSEL: Plaintiff-D.A. Smallbone
Defendants- A.M. Gruzman

SOLICITORS: Plaintiff-Holman Webb lawyers
Defendants- McBride Harle & Martin solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

MONDAY, 20 DECEMBER 2010

2010/287070 JOHN FREDERICK HILLAM v LEDUVA PTY LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiff, John Frederick Hillam, seeks specific performance of a contract to purchase a residential apartment in Henderson Road, Alexandria. The vendor and defendant, Leduva Pty Limited resists the grant of this relief. Mr Hillam claims that the contract for sale, originally made on 8 January 2008, was varied by a further agreement recorded on 30 June 2010 in Short Minutes of Order in possession proceedings in the Common Law Division of this Court (295808/2009). Leduva agrees that the 8 January 2008 contract for sale of the Alexandria apartment was varied in June this year but says that Mr Hillam defaulted on the varied terms and…

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: [2010] NSWSC 1360
Decision Date: 20 DECEMBER 2010

CaseChat Overview and Summary

In the case of Hillam v Leduva Pty Limited, the dispute involved the parties' rights and obligations under a contract for the sale of land. The matter was heard and determined in the Supreme Court of New South Wales. The vendor, Hillam, sought equitable relief against forfeiture and specific performance against the purchaser, Leduva Pty Limited, who had failed to settle the purchase price on the originally agreed date and had subsequently failed to meet the adjourned settlement date.

The central legal issues before the court were whether the plaintiff was entitled to relief against forfeiture and whether they were entitled to specific performance of the contract. The court had to consider the circumstances surrounding the parties' conduct and the legal principles applicable to the enforcement of contracts for the sale of land, including the equitable remedy of specific performance.

The court found that the plaintiff was entitled to relief against forfeiture and granted specific performance of the contract. The court reasoned that the purchaser had been let into occupation of the property, which constituted a significant step towards completing the transaction. Despite the purchaser's failure to settle on time, the court determined that the vendor had not unequivocally terminated the contract. The court concluded that the equitable remedy of specific performance was appropriate given the circumstances, as it would provide a just and effective remedy to the vendor.

The court's final orders included granting specific performance of the contract for the sale of land, requiring the purchaser to complete the purchase as per the original terms, and directing the parties to complete the transaction within a specified timeframe.

Orders