Leeming JA at [1]; White JA at [152]; McCallum JA at [167].
Decision:
Appeal dismissed with costs.
Catchwords:
CONTRACT – contract to transfer land, subdivide it and reconvey lots to vendor on which were constructed a House and Duplex – developer failed to provide Layout Plans to vendor of House and Duplex – plans ultimately provided – plans gave rise to dispute as to dimensions of “Duplex” – developer in breach of promise to reconvey lots with House and Duplex constructed – common ground that reasonable not to construct Duplex until dispute resolved – whether order for reconveyance of lots as vacant land plus Lord Cairns’ Act damages appropriate – Soames v Edge (1860) Johns 669; 70 ER 588 considered – whether primary judge misapprehended plaintiff’s case – whether anything turns on misapprehension of plaintiff’s case – whether primary judge erred in proper construction of “Duplex” – whether primary judge erred in failing to address availability of contractual limitation of liability
SPECIFIC PERFORMANCE – nature and availability of remedy – relevance of historic breach – need to establish not just for plaintiff to be confined to damages – damages under Supreme Court Act 1970 (NSW), s 68 (Lord Cairns’ Act) – nature and availability of remedy
[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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AGLC
Paolucci v Makedyn Pty Ltd [2021] NSWCA 215
Case
[2021] NSWCA 215
Decision Date
CaseChat Overview and Summary
The dispute in *Paolucci v Makedyn Pty Ltd* concerned a contract for the transfer of land, its subdivision, and the reconveyance of specific lots to the vendor, upon which a house and a duplex were to be constructed. The developer, Makedyn Pty Ltd, failed to provide layout plans for the house and duplex to the vendor, Paolucci, in a timely manner. When plans were eventually provided, a dispute arose regarding the dimensions of the "Duplex." It was agreed that it was reasonable not to proceed with the construction of the duplex until this dispute was resolved. Paolucci alleged that Makedyn Pty Ltd was in breach of its promise to reconvey the lots with the house and duplex constructed.
The central legal issues before the Court of Appeal of New South Wales were whether an order for the reconveyance of the lots as vacant land, coupled with damages under Lord Cairns' Act (as enacted in section 68 of the *Supreme Court Act 1970* (NSW)), was an appropriate remedy. The court also considered whether the primary judge had misapprehended the plaintiff's case, whether any such misapprehension was material to the outcome, and whether the primary judge had erred in the construction of the term "Duplex" or in failing to address the availability of a contractual limitation of liability.
The court reasoned that the primary judge had not erred in their construction of the term "Duplex" or in their assessment of the plaintiff's case. The court affirmed that the remedy of specific performance is discretionary and that damages under section 68 of the *Supreme Court Act 1970* (NSW) are available where specific performance would not be granted. The court considered the precedent of *Soames v Edge* and concluded that the primary judge had correctly applied the relevant principles in determining the appropriate relief. The appeal was dismissed with costs.