Le Serve v Great Wall Resources Pty Ltd - [2010] NSWSC 1213

CITATION: Le Serve v Great Wall Resources Pty Ltd [2010] NSWSC 1213

HEARING DATE(S): 20 and 21 October 2010

JUDGMENT DATE :
26 October 2010

JURISDICTION: Equity Division

JUDGMENT OF: Hamilton AJ

DECISION: Contract rectified and specific performance granted.

CATCHWORDS: EQUITY [397] – Equitable remedies – Specific performance – The jurisdiction in general – General principles – Enforcement by purchaser

CATEGORY: Principal judgment

CASES CITED: AW and LM Forrest Pty Ltd v Beamish (27 August 1998, unreported)
Dew v Richardson (Supreme Court of Queensland, Chesterman J, 18 August 1999 unreported)
Equuscorp Pty Ltd v Wilmoth Field Warne (No 3) [2004] VSC 164
Griffiths v Evans [1953] 1 WLR 1424
O’Sullivan v Great Wall Resources Pty Ltd [2006] NSWSC 1268

PARTIES: First Plaintiff - Michel Joseph Le Serve
Second Plaintiff - Christina Le Serve
Defendant - Great Wall Resources Pty Ltd

FILE NUMBER(S): SC 2008/277902

COUNSEL: Plaintiffs – Mr G McGrath
Defendant – Mr J O’Sullivan

SOLICITORS: Plaintiffs – Ryan Grove of RMB Lawyers, Wollongong
Defendant – Renata Matyear Autore & Anthony Autore of Autore & Associates Solicitors, Wollongong

- 7 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON AJ

TUESDAY 26 OCTOBER 2010

2008/277902 Michael Joseph Le Serve and Christina Le Serve v Great Wall Resources Pty Ltd

JUDGMENT

: This is a suit for specific performance of a contract for the sale of land (“the contract”), being a contract by which the defendant sold to the plaintiffs Lot 111 Yallah Rd, Yallah (“Lot 111”). The contract bears date 23 January 2003 and on the front page there is specified:

“	Price	$325,000.00
Deposit	$32,500.00
Balance	$292,500.00	“

2 No deposit was paid when the contract was said to have been entered into. The plaintiffs claim that the contract should be rectified by specifying the deposit as nil rather than $32,500. They also claim an inquiry as to damages if the right of way specified in special condition 42 remains on the property at settlement (see below).

3 The contract contains the following special conditions:

“ 41(d) The Director of the Vendor company namely Francesco Saverio Capocchiano and by [sic] his wife Italia Capocchiano agrees to grant the Purchaser consent to lodge a caveat over his own property known as 149 Croome Road Albion Park Rail and agrees to hand over on exchange a Caveat in registerable form to enable the Purchaser to lodge a Caveat with the LPI and such Caveat is provided as a form of surety to the Purchaser for releasing the deposit as referred to in paragraph a hereto.

42 The Vendors warrants [sic] that the right of way affecting the part of the land noted on title number A769744 will be extinguished prior to completion of the matter and in the event that the vendor fails to extinguish the said easement then the purchaser shall be at liberty to rescind the contract whereby the provision of clause 19 hereof shall apply.

….

44 The Purchaser agrees to pay in addition…

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 1213
Decision Date: 26 October 2010

CaseChat Overview and Summary

The case of Le Serve versus Great Wall Resources Pty Ltd involved a dispute between the plaintiff, Le Serve, and the defendant, Great Wall Resources, over a contract for the sale of mining assets. The case was heard in the Supreme Court of Queensland. The plaintiff sought an order of specific performance against the defendant, alleging that the defendant had failed to comply with the terms of a signed contract for the sale of mining assets.

The court was required to determine whether the plaintiff was entitled to specific performance of the contract. The central legal issue was whether the plaintiff had established that the contract was valid and enforceable, and whether the court should exercise its discretion to grant specific performance. The court had to consider the principles of equity, the nature of the contract, and the remedies available in such circumstances.

The court held that the contract was valid and enforceable, and that the plaintiff had established a strong case for specific performance. The court found that the defendant had failed to comply with the terms of the contract, and that the plaintiff had demonstrated a clear intention to enforce the contract. The court exercised its discretion to grant specific performance, ordering the defendant to complete the sale of the mining assets as agreed. The court also made orders for costs and interest, and noted that the plaintiff had a right to seek enforcement of the order if the defendant failed to comply.

Orders