JD & KJ Zohs Properties Pty Ltd v Ferme

In the matter of JD & KJ Zohs Properties Pty Ltd v Ferme, the plaintiff sought summary judgment for specific performance of a contract for the sale of land, which was entered into between the defendants, Murray Robert Ferme and Rebecca Jenette Crawford, as the executors of the estate of Mavis Jean Smart, deceased, and the plaintiff. The plaintiff assigned its rights under the contract to a third party and has been ready, willing and able to settle under the contract, but the defendants have not settled. The plaintiff sought a declaration that the contract is valid and enforceable and orders for specific performance of the contract, together with damages and costs. The legal issues before the Court were whether the contract was valid and enforceable and whether specific performance should be granted. The Court held that the contract was valid and enforceable and that specific performance should be granted. The Court found that the plaintiff had put forward a proper case for the making of an order pursuant to s 40 of the Trustee Act, and that it was more convenient to appoint the second defendant to convey the land rather than to make a vesting order. The Court made several ancillary orders, including that the plaintiff pay the balance of the purchase price together with any allowance for the adjustment of rates and taxes or other outgoings in respect of the land on or before 25 September 2014 and that the second defendant deliver to the plaintiff a Memorandum of Transfer in registerable form which has been executed by the second defendant. The Court also directed the Registrar-General to register the transfers on the Certificates of Title for the land notwithstanding that the Memorandum of Transfer shall only have been executed by one of the executors of the estate of the late Mavis Jean Smart and one of the registered proprietors of the land; provided further that in the event that the duplicate Certificates of Title are not produced to the Registrar-General with the Memorandum of Transfer, the Registrar-General is directed pursuant to s 64 to cancel the Certificates of Title and issue new original and duplicate Certificates of Title in the name of the plaintiff as the registered proprietor of the whole of the land. The Court adjourned to a later date the hearing in relation to damages and costs.