Precision Pest Control Pty Ltd v Ligon 158 Pty Ltd - [2004] NSWSC 1163

CITATION: Precision Pest Control Pty Ltd & Ors v Ligon 158 Pty Ltd [2004] NSWSC 1163

HEARING DATE(S): 30 November, 2004

JUDGMENT DATE:
1 December 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Palmer J

DECISION: Direction for execution of transfer given.

CATCHWORDS: CONTRACT - SPECIFIC PERFORMANCE - COURT SUPERVISION - Consent orders for specific performance made - vendor refuses to complete on trifling grounds and purports to issue Notice to Complete. - HELD: Notice to Complete invalid as issued without Court's approval while performance of contract under Court's supervision. - EXECUTION OF DOCUMENTS - In what circumstances order for execution of documents by Registrar should be made.

LEGISLATION CITED: Supreme Court Act 1970 (NSW) - s.100

CASES CITED: - Daniels v Pynbland Pty Ltd (No 2) (1985) 4 BPR 1796
- Facey v Rawsthorne (1925) 35 CLR 566
- Jag Investment Pty Ltd v Strati [1981] 2 NSWLR 601
- Savage v Norton [1908] 1 Ch 290
- Shehata v Hussein [2004] NSWSC 617
- Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245

PARTIES :
Precision Pest Control Pty Ltd - First Plaintiff
Peter Steven Sakley - Second Plaintiff
Simon de Montemas - Third Plaintiff
Ligon 158 Pty Ltd - First Defendant
Erma Nominees Pty Ltd - Second Defendant

FILE NUMBER(S): SC 5969/04

COUNSEL: R.K. Weaver - Plaintiffs
R.S. Angyal SC - Defendants

SOLICITORS: Comino Prassas - Plaintiffs
M. Binetter - Defendants

1 By contract for sale dated 20 January 2004 the Defendants agreed to sell to the First Plaintiff certain industrial premises comprised in a strata plan to be registered for the price of $404,800. The Second and Third Plaintiffs are the directors of the First Plaintiff. In accordance with Clause 4.3 of the contract the First Plaintiff has directed the Defendants to transfer the property to the Second and Third Plaintiffs.

2 Special Condition 45.1 of the contract provided that completion “must take place at 2:00pm on the Completion Date”. “Completion Date” was relevantly defined as meaning the fourteenth day after the day on which the Defendants gave written notice to the First Plaintiff of the registration of the strata plan in respect of the subject property.

3 By the end of August 2004, the First Plaintiff had heard nothing from the Defendants about registration of the strata plan. The Plaintiffs became concerned and made some enquiries, which revealed that other purchasers of premises in the strata plan had apparently already completed their purchases and were in occupation. On 20 September 2004, the Third Plaintiff wrote to the Defendants’ solicitor, Mr Binetter, in the following terms:

“Further to our numerous discussions over the past nine months concerning the settlement date for our purchase of the above property, can you please confirm in writing when settlement will occur.

It is our understanding that a number of other purchasers have already settled and in some cases this was up to six weeks ago.

We would appreciate receiving your written response no later than close of business on Tuesday…

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.

Continue reading Precision Pest Control Pty Ltd v Ligon 158 Pty Ltd

Details

AGLC: Precision Pest Control Pty Ltd v Ligon 158 Pty Ltd [2004] NSWSC 1163
Case: [2004] NSWSC 1163
Decision Date: 1 December 2004

CaseChat Overview and Summary

Precision Pest Control Pty Ltd sought specific performance of a contract for the sale of a property from Ligon 158 Pty Ltd. The Federal Circuit and Family Court of Australia considered the dispute. The legal issues revolved around the authority of the vendor to issue a Notice to Complete when the contract was under the court's supervision and whether the court should order the execution of documents by the Registrar.

The court found that the vendor's issuance of the Notice to Complete was invalid as it was made without the court's approval. The contract was under the supervision of the court, and therefore, any action to complete the sale required the court's consent. The court emphasised that the vendor's attempt to bypass the court's supervision was contrary to the order for specific performance. Regarding the execution of documents, the court considered that such an order should be made in circumstances where it would facilitate the completion of the sale and ensure the contract's proper execution.

The court held that the Notice to Complete was invalid and set it aside. The court maintained its supervision over the contract and directed the parties to complete the sale as per the terms of the original contract. The court also noted that while it might order the execution of documents by the Registrar, it would do so only when necessary to ensure the contract's completion and in the interest of justice.

Orders