Wesco Ventures Pty Ltd v Cecil Developments Pty Limited - [2020] NSWSC 98

Supreme Court

New South Wales

Medium Neutral Citation: Wesco Ventures Pty Ltd v Cecil Developments Pty Limited [2020] NSWSC 98
Hearing dates: 12 February 2020
Decision date: 20 February 2020
Before: Ball J
Decision:
(1)   An order that the defendants specifically perform clause 2.1(e) of the Deed of Release between the parties dated 1 August 2019 by the defendants, within 28 days, by providing to the plaintiffs' solicitors the agreement of each person who has an estate or interest in the Land to the registration of the VPA on the title of the Land in a form acceptable to the NSW Land Registry for the purposes of section 7.6 of the Environmental Planning & Assessment Act 1979 (NSW). This requires:

(a)   In respect of the first defendant's consent as registered proprietor of the Land, the provision of the first defendant's agreement to the registration of the VPA on the title of the Land in a form acceptable to the NSW Land Registry; and

(b)   In respect of any other estate or interest holders in the Land, either:

(i)   The provision of those interest holder's agreement to the registration of the VPA on the title of the Land in a form acceptable to the NSW Land Registry; or

(ii)   The discharge of any sum owed to the other estate or interest holders in the Land and the taking of all further steps necessary to remove their interest from the Land.

(2)   “Land” in these orders means the land with the following NSW Land Registry references:

(a)   Lot 6 DP 705913;
(b)   Lot 27 DP 15399;
(c)   Lot 1 DP 531559;
(d)   Lot 4 DP 531559;
(e)   Lot 5 DP 705913;
(f)   Lot 1 DP 581293;
(g)   Lot 3 DP 581293;
(h)   Lot 2 DP 581293;
(i)   Lot 4 DP 581293;
(j)   Lot 1 DP 547897;
(k)   Lot 2 DP 547897;
(l)   Lot 1 DP 591676;
(m)   Lot 2 DP 591676;
(n)   Lot 20 DP 15399;
(o)   Lot 6 DP 29141;
(p)   Lot 5 DP 29141;
(q)   Lot 21 DP 778585; and
(r)   Lot 22 DP 77855.

(3)   Liberty to the defendants to apply in relation to the time by which they have to comply with order (1).

(4)   Subject to order (5), the defendants pay the plaintiffs’ costs.
(5)   Liberty to any party to apply to vary order (4) within 14 days of the date of this judgment.
Catchwords: CONTRACTS – parties – whether all parties to contract must be joined
CONTRACTS – breach of contract – whether breach of an obligation to “procure” a result where no time specified for compliance with the obligation
CONTRACTS – remedies – specific performance – whether damages provide an adequate remedy
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Hills Local Environmental Plan 2012
Cases Cited: Boyarsky v Taylor [2008] NSWSC 1415; 14 BPR 26,553
News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Pasedina (Holdings) Pty Ltd v Khouri (1977) 1 BPR 9460
Wilson v Northampton and…

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: [2020] NSWSC 98
Decision Date: 20 February 2020

CaseChat Overview and Summary

Wesco Ventures Pty Ltd brought an action against Cecil Developments Pty Limited alleging breaches of contract. The dispute centres around a contract in which Cecil Developments was to procure certain results. Wesco claimed that Cecil Developments had not fulfilled its contractual obligations within the agreed timeframe. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether all parties to a contract must be joined in litigation and whether a breach of a contractual obligation to “procure” a result is valid when no specific time for compliance is stipulated. Additionally, the court had to determine if damages would be an adequate remedy for breach of contract, or if specific performance should be granted.

The court determined that not all parties to a contract need to be joined in litigation if one party can fully represent the interests of the absent parties. Regarding the obligation to “procure” a result, the court held that the obligation is breached if the result is not achieved within a reasonable time. The court found that the absence of a specific timeframe did not absolve Cecil Developments of its duty to act promptly. The court concluded that damages were an adequate remedy for the breaches found, and specific performance was not necessary.

Orders