Wong v Pypy

[2020] NSWSC 1085

Supreme Court

New South Wales

Medium Neutral Citation:

Wong v Pypy [2020] NSWSC 1085

Hearing dates:

12 August 2020

Date of orders:

12 August 2020

Decision date:

12 August 2020

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Order that the defendant do all things and take all steps necessary to give effect to the agreement between the parties made on or about 28 October 2019, the terms of which are set forth in Order 1 of the Amended Notice of Motion filed by the plaintiff in the proceedings on 9 June 2020.

(2)   To give effect to that order, I order that the defendant:

(a)   pay the sum of $345,000 to the plaintiff on or before 11 November 2020, and

(b)   upon payment being made to forthwith execute consent orders in the terms set out in paragraph 1 (iii) of the Amended Notice of Motion filed 9 June 2020.

(3)   Otherwise dismiss the Amended Notice of Motion.

(4)   Order each party to pay her and his own costs of the Amended Notice of Motion up to and including 25 April 2020.

(5)   Order the defendant to pay the plaintiff's costs of the Amended Notice of Motion as and from 26 April 2020.

Catchwords:

CONTRACTS — Remedies — Specific performance – where settlement agreement has not been performed by defendant – agreement not terminated by plaintiff – plaintiff not seeking damages - order for specific performance

COSTS — Party/Party — General rule that costs follow the event

Legislation Cited:

Not Applicable

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Jonathan Wong (P)
Suriawati Pypy (D)

Representation:

Counsel:
A Rogers (P)
N Kirby (D)

Solicitors:
Ronayne Owens Lawyers (P)
ALP Lawyers (D)

File Number(s):

2019/73625

Publication restriction:

Not Applicable

EX TEMPORE Judgment

An Offer to Resolve Litigation

1. On 30 September 2019, the defendant made an offer to resolve litigation then on foot between the plaintiff and herself by way of a Letter of Offer (“the Offer”) upon the following terms:

“1.   The Defendant to pay the Plaintiff $345,000 (inclusive of all principals, interest and costs) within 180 days of the acceptance of this offer;

2.   Within 180 days of receiving the $345,000, the Plaintiff to do all things necessary and sign all documents necessary to remove himself as the registered mortgagee of the subject property and to enable the defendant to obtain an electronic or supplementary certificate of title of the subject property;

3.   Parties to file consent orders dismissing both the Plaintiff's claim and the Defendant's cross-claim.”

An Acceptance of that Offer

2. By letter dated 28 October 2019, the plaintiff’s solicitors conveyed their instructions which were by that correspondence to accept the Offer.

Subsequent Proposed Amendments to the Agreement

3. After that point in time, and up until about December 2019, there was correspondence indicating on the part of the defendant a desire to renegotiate one of the terms of that Offer which had been accepted and, on the part of the plaintiff, a desire to include further terms in that accepted Offer. Neither of those proposals came to fruition.

Notice of Motion

4. On 23 December 2019, the plaintiff filed a Notice of Motion seeking a declaration about the terms of the agreement between the parties reached on 28 October 2019, and further seeking an order that the defendant do all things and take all steps necessary to give effect to that agreement. This was a Motion seeking specific performance of that agreement.

5. Under the agreement, the defendant was to pay the sum of $345,000 within 180 days of it being accepted. This meant that the defendant was not required to do anything until 25 April 2020, which was 180 days after acceptance, and therefore the date when the agreed amount was due under the agreement. It follows that the Motion of 23 December 2019 seeking specific performance was premature.

Subsequent Events

6. The moneys were not paid by 25 April 2020. On 28 April 2020, the solicitors for the plaintiff served a document entitled "Notice to Perform" upon the defendant. That Notice called upon the defendant to perform her obligation under the agreement and required performance of the payment of the settlement sum within 21 days of the Notice. The Notice went on to specify that the payment time of the settlement sum was of the essence. That Notice to Perform was not complied with.

Amended Notice of Motion

7. On 9 June 2020, an Amended Notice of Motion was filed which, in addition or in the alternative, sought orders relating to possession of the property. The matter was fixed in the Duty List for hearing today. In the course of the submissions and after the evidence had been taken, counsel for the plaintiff indicated that in light of the exchange of submissions between the parties he could not press for a declaration in the form of Order 1. This was because counsel for the plaintiff conceded that it was clear there was no difference in understanding between the plaintiff and the defendant as to the contents of the agreement of 28 October 2019. Obviously, in such a circumstance a declaration would be of no utility.

8. However, counsel for the plaintiff pressed for an order for specific performance. He made the point, justifiably on all of the evidence, that his client had not terminated the agreement and was not suing for damages but, rather, was pressing for the performance of the agreement. Counsel for the plaintiff submitted that if the Court was to make an order in the general terms set out in Order 2 of the Notice of Motion, it would be appropriate to make specific orders.

Submissions

9. The specific orders sought were that the agreement be specifically performed by the defendant carrying out the following steps. First, the payment of the settlement sum of $345,000 within a reasonable time, being a period of 90 days from the date of the Court's order. Secondly, upon payment, the defendant to execute consent orders of the kind described in paragraph 1(iii) of the Amended Notice of Motion.

10. Counsel for the defendant, entirely appropriately, conceded that he could not offer any submission contrary to the specific terms of those orders. I say entirely appropriately because, first, it is plain that an agreement in the terms set out in paragraph 1 of the Amended Notice of Motion was reached between the parties on or about 28 October 2019. Secondly, it is clear that the defendant has not complied with that agreement. Thirdly, the plaintiff has not purported to terminate the agreement but has kept it on foot and there is no basis to consider that the plaintiff is not ready, willing and able to perform all steps as part of that agreement that he is obliged to.

11. In those circumstances, an order for specific performance, generally of the agreement with the specific terms nominated by counsel for the plaintiff, is an entirely appropriate order for the Court to make, and there is no evidence in the proceedings which would stand against the Court making such orders. In light of that, these reasons are short and I will make the orders sought by the plaintiff.

Costs

12. The plaintiff then sought an order for costs of the Notice of Motion. The defendant resisted the order for costs essentially on two bases. First, that when the Notice of Motion was filed in December 2019, and at all times after that up to 25 April 2020, it was premature and that at that time the plaintiff was not entitled to an order for specific performance or the declaration that was sought. Thereafter, the defendant submitted that the general nature of the order sought for specific performance of the agreement was such that the agreement could not have been specifically performed in its terms (without the specification of the additional terms suggested by counsel for the plaintiff in oral argument today).

13. On that basis the defendant resisted an order for costs and submitted that at least since 25 April 2019, there should be no order as to costs other than that each party pay their own costs.

14. I do not accept the submissions of the defendant in whole. I accept that the Notice of Motion was prematurely filed and, up until 25 April 2019 or shortly thereafter, was liable to be summarily dismissed. However, no such application was made and it seems to me that, in circumstances where the Notice of Motion largely was inactive over that period, the appropriate order to be made is that each party is to pay their own costs of the Notice of Motion up to and including 25 April 2020.

15. Thereafter the Notice of Motion sought specific performance. A realistic assessment of that order for specific performance would have included a term that the moneys be paid within a reasonable time after the order was made. I see no basis for concluding that the plaintiff has not enjoyed complete success with respect to the order for specific performance, and it seems to me appropriate that, as and from 25 April 2020, the order which should be made is that costs follow the event.

Orders

16. I will make the following orders:

1. Order that the defendant do all things and take all steps necessary to give effect to the agreement between the parties made on or about 28 October 2019, the terms of which are set forth in Order 1 of the Amended Notice of Motion filed by the plaintiff in the proceedings on 9 June 2020.

2. To give effect to that order, I order that the defendant:

1. pay the sum of $345,000 to the plaintiff on or before 11 November 2020, and

2. upon payment being made, to forthwith execute consent orders in the terms set out in paragraph 1 (iii) of the Amended Notice of Motion filed 9 June 2020.

3. Otherwise dismiss the Amended Notice of Motion.

4. Order each party to pay her and his own costs of the Amended Notice of Motion up to and including 25 April 2020.

5. Order the defendant to pay the plaintiff's costs of the Amended Notice of Motion as and from 26 April 2020.

**********

Decision last updated: 18 August 2020