Wolseley Investments Pty Ltd v Gillespie

Wolseley Investments Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge that ordered specific performance of a contract. The contract was between the appellant, a body corporate managing a home unit building, and Mr. Gillespie (the respondent), an apartment owner. The dispute concerned the appellant's obligation to lodge a development application with the council and use its best endeavours to secure development consent for the creation of an extra apartment in the attic of the building. The primary judge had found that the appellant had neither committed a contractual breach nor acted in a way that would give rise to a reasonable apprehension of such a breach.

The central legal issues before the Court of Appeal were whether the primary judge erred in ordering specific performance in circumstances where no contractual breach had occurred and no conduct giving rise to a reasonable apprehension of breach was established. Further, the court was required to consider whether costs should be awarded against a party who unsuccessfully opposed an application for specific performance in such a situation. The interpretation of the contractual terms "all due despatch" and "best endeavours" was also relevant to the determination of the appellant's obligations.

The Court of Appeal allowed the appeal, holding that the primary judge's order for specific performance was not justified. The court reasoned that specific performance is an equitable remedy typically granted to enforce contractual obligations where damages are an inadequate remedy, and it is usually predicated on a breach or a threatened breach of contract. In this instance, the primary judge had found no such breach or threatened breach. Consequently, the court determined that the respondent's Statement of Claim should be dismissed. The appellant was awarded its costs of the proceedings below and of the appeal, with a certificate for the appeal costs under the Suitor's Fund Act 1951, provided the appellant otherwise qualified.