Plexvon Neutral Bay Pty Ltd v Lily
[2007] NSWSC 423
•18 April 2007
CITATION: Plexvon Neutral Bay Pty Ltd v Lily [2007] NSWSC 423 HEARING DATE(S): 18 April 2007
JUDGMENT DATE :
18 April 2007JURISDICTION: Equity JUDGMENT OF: Hamilton J DECISION: Specific performance ordered. CATCHWORDS: EQUITY [379] - Equitable remedies - Specific performance - The jurisdiction in general - General principles - Enforcement by vendor. CASES CITED: Gaggin v Lemari (2002) 10 BPR 18,381 PARTIES: Plexvon Neutral Bay Pty Limited (P)
Agnes Lily (D)FILE NUMBER(S): SC 1259/07 COUNSEL: P Bolster (P)
No appearance (D)SOLICITORS: G P Bartels (P)
No appearance (D)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
WEDNESDAY, 18 APRIL 2007
1259/07 PLEXVON NEUTRAL BAY PTY LIMITED v AGNES LILY
JUDGMENT
1 HIS HONOUR: This is the ex parte trial of proceedings for specific performance of a contract for the sale of land brought by the plaintiff by a statement of claim filed on 25 January 2007. The land contracted by that contract to be sold is land that has become Lot 10 in Strata Plan 77880. The date of the contract was 4 June 2004 and the price of the lot sold was $700,000.
2 The contract by clause 33 provided, in the events which have occurred, for completion on a day which was the 14th day after service on the defendant of notice of the registration of the strata plan and the 14th day after the vendor served a copy of the certificate of occupation on the purchaser.
3 Clause 35 of the contract provided as follows:
(a) the purchaser shall pay interest at a rate of ten (10 per cent) per annum on the balance of the purchase price ... from the date so specified for completion until the date completion actually takes place ...”“ Interest
35.1: Should completion of the Agreement not take place within the time specified in Special Condition 33 hereof otherwise than as a result of any default by the vendor under this agreement,
4 On 28 November 2006 the plaintiff’s conveyancing solicitors, David Kam & Co, sent a letter to the defendant’s solicitors, Peter Loh & Co, by which they informed those solicitors that the strata plan was registered at Land and Property Information NSW that day as Strata Plan No 77880 and under cover of the same letter enclosed the final occupation certificate. The letter specified that, accordingly, completion was to take place 14 days after that date, ie, on 12 December 2006.
5 On 13 December 2006 the plaintiff served on the defendant a notice to complete calling for settlement to take place by 12 January 2007. Completion did not take place in accordance with the notice to complete. Further requests for extension of time by the defendant’s solicitors have not been responded to. In the meantime, the plaintiff’s response was, as has already been indicated, to commence these proceedings by statement of claim filed on 25 January 2007.
6 There have been some complications concerning service of the statement of claim. At one stage, the plaintiff purported to rely upon service under cover of a letter to the defendant’s solicitors dated 31 January 2007 in reliance upon a service provision in the contract. However, the plaintiff concedes that by reason of the decision of Young J (as his Honour then was) in Gaggin v Lemari (2002) 10 BPR 18,381 that service cannot be relied on. The defendant was finally served personally on 11 April 2007, two days before the matter was originally in the list before me for hearing on 13 April 2007. The matter has been stood over to today by reason of the exigencies of business in the Duty List on 13 April. However, before personal service upon her was effected, it was plain from a letter from the defendant’s solicitors to the plaintiff’s solicitors in these proceedings dated 12 April 2007 that the defendant was aware of the hearing on that day; that she did not intend to attend or be represented; and confirming that she continued to regard herself as bound by the contract.
7 It is not contested by the defendant, who is well aware of this hearing and its possible consequences, that the plaintiff is entitled to specific performance of the agreement and the plaintiff appears to me to be so entitled upon the evidence led before me.
8 I therefore propose to make orders for specific performance in the form of orders 1 to 5 inclusive in the statement of claim. On the material before me I propose to make the following additional orders:
(6) I declare that the plaintiff is entitled on completion to be paid by the defendant interest on the outstanding balance of the purchase price of $700,000 at the rate of 10 per centum per annum from 12 December 2006 until completion calculated on daily rests.
(7) I order that the proceedings be reserved for further consideration.
(8) I grant to the parties liberty to apply on three days notice.
(9) I order that the defendant pay the plaintiff’s costs of the proceedings.
9 I order that there be orders in accordance with prayers 1 to 5 in the statement of claim together with the additional four orders that I have enunciated.
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