Yapp v Pollak - [2019] NSWSC 449

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Yapp v Pollak [2019] NSWSC 449
Hearing dates: 10 April 2019
Date of orders: 24 April 2019
Decision date: 24 April 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Orders made for specific performance of contract for sale of land.

Catchwords: LAND LAW – contract for sale of land – claim by vendor for specific performance – construction – special condition in contract stipulated that the vendor agrees to replace lower staircase in the property in accordance with a Development Approval prior to settlement – special condition further stipulated that “the vendor warrants that all Development Consent Conditions will be satisfied on or before completion” and will provide an occupation certificate prior to settlement – where not all works permitted by Development Approval had been carried out – whether special condition required the vendor to complete all the works the subject of the Development Approval – special condition held to require only the replacement of lower staircase and provision of an occupation certificate in respect of that work – vendor held to have complied with special condition – specific performance ordered
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 109H
Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), cl 18
Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342
Jireh International Pty Ltd t/as Gloria Jean’s Coffee v Western Exports Services Inc [2011] NSWCA 137
Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184
Miwa Pty Ltd v Siantan Properties Pte Ltd (2011) 15 BPR 29,545; [2011] NSWCA 297
Teele v Federal Commissioner of Taxation (1940) 63 CLR 201
Category: Principal judgment
Parties: Ian Martin Yapp (First Plaintiff/First Cross Defendant)
George Orena (Second Plaintiff/Second Cross Defendant)
Joseph Pollak (Defendant/Cross Claimant)
Representation:
Counsel:
Mr B A Coles QC with Mr P B Walsh (Plaintiffs/Cross Defendants)
Mr G Farland (Defendant/Cross Claimant)
Solicitors:
Day Legal (Plaintiffs/Cross Defendants)
Sachs Gerace Broome Lawyers (Defendant/Cross Claimant)

File Number(s): 2019/8599
Publication restriction: None

Judgment

Introduction

These proceedings were commenced by Summons filed on 9 January 2019. On 1 February 2019 orders were made for the matter to proceed on pleadings and, due to some urgency, the matter was set down for hearing on 10 April 2019.
The plaintiffs are the registered proprietors of a three level residential property in Forbes Street, Woolloomooloo, being the land contained in Folio Identifier 1/611013. On 30 June 2018 the plaintiffs entered into a contract for the sale of the land to the defendant for a price of $2.765m. The completion date was stipulated…

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 Yapp v Pollak

Details

AGLC: Yapp v Pollak [2019] NSWSC 449
Case: [2019] NSWSC 449
Decision Date: 24 April 2019

CaseChat Overview and Summary

In Yapp v Pollak, the dispute centred on a contract for the sale of land where the vendor sought specific performance from the purchaser. The case was heard in the Supreme Court of New South Wales. The central issue was whether a special condition in the contract obligated the vendor to complete all works permitted by a Development Approval, or if it merely required the replacement of a specific staircase and provision of an occupation certificate for that work.

The special condition stipulated that the vendor would replace the lower staircase in accordance with the Development Approval and warrant that all Development Consent Conditions would be satisfied before completion. The court needed to determine if the condition required the vendor to complete all works under the Development Approval or just the specified staircase replacement. The court held that the condition required only the replacement of the lower staircase and the provision of an occupation certificate relating to that work. As the vendor had complied with this, the court found that the vendor had fulfilled the special condition.

The court ordered specific performance, requiring the purchaser to complete the sale as per the contract terms. The decision underscored the importance of precise wording in special conditions and highlighted the need for clarity in contractual obligations concerning development approvals. The final orders mandated the purchaser to proceed with the sale, ensuring the vendor's compliance with the specific condition was recognised and enforced.

Orders