Paolucci v Makedyn Pty Ltd

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.