Zorbas v Titan Properties (Aust) Pty Ltd - [2005] NSWSC 440

CITATION:
Zorbas v Titan Properties (Aust) [2005] NSWSC 440

HEARING DATE(S): 5/5/05, 10/5/05 & 11/5/05

JUDGMENT DATE :

5 May 2005

JURISDICTION:
Equity

JUDGMENT OF:
Campbell J

DECISION:
Further order to be made

CATCHWORDS:
CONVEYANCING - vendor's order for specific performance - procedures for enforcement - whether mandatory to give a defendant who has failed to comply with an order for specific performance further time before enforcement proceedings are initiated - powers of court to extend time for compliance with an order for specific performance - PROCEDURE - "four day orders" - status in NSW procedure - EVIDENCE - burden of proof - of lack of utility of making an order for specific performance

LEGISLATION CITED:
Real Property Act 1900
Supreme Court Act 1970

CASES CITED:
ANS Nominees Pty Ltd v Beverly Manufacturing Co Pty Ltd [1979] 2 NSWLR 875
Buckman v Rose (1980) 1 BPR 9558
Kirkpatrick v Kotis [2004] NSWSC 1265
Liemann v Rightside Properties Ltd (1973) 229 Estates Gazette 1347
McMahon v Cooper (1903) 20 WN (NSW) 220
Morgan v Brisco (1885) 31 Ch D 216
Morgan v Brisco (1886) 32 Ch D 192
Palmer v Lark [1945] 1 Ch 182
Pasedina (Holdings) Pty Ltd v Khouri (1977) 1 BPR 97046
Singh v Nazeer [1979] Ch 474
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
Turner v Oates Properties Pty Ltd [2004] NSWSC 732
Zorbas v Titan Properties (Aust) [2005] NSWSC 213

PARTIES:
Peter Zorbas - Plaintiff
Titan Properties (Aust) Pty Ltd - First Defendant
Delta Constructions (Aust) Pty Ltd - Second Defendant
Titan Projects Pty Ltd - Third Defendant

FILE NUMBER(S):
SC 5505/04

COUNSEL:
A J McInerney - Plaintiff
D Howen - First Defendant (amicus curiae)

SOLICITORS:
Magney & Magney - Plaintiff
Sage Solicitors & Accountants - First Defendant (amicus curiae)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

THURSDAY 5 MAY 2005

5505/04 PETER ZORBAS v TITAN PROPERTIES (AUST) PTY LIMITED & ORS

JUDGMENT – Ex Tempore (Revised 5 May 2005)

1 HIS HONOUR: On 14 March 2005 I gave a judgment in this matter which made orders for specific performance of a contract for sale of land, at the suit of the vendor: Zorbas v Titan Properties (Aust) [2005] NSWSC 213. The orders made on that occasion were in the form asked for by the plaintiff. The precise form of those orders was as follows:

“THE COURT DECLARES THAT:

1. The contract for sale made between the plaintiff as vendor and the first defendant as purchaser on 28 April 2004 in respect of property of the plaintiff situated at 38 and 40 Edgbaston Road, Beverley Hills, NSW being Folio Identifier Nos. 1/872208 and 2/872208 (‘the property’) is valid and enforceable.

THE COURT ORDERS THAT:

2. The agreement dated 28 April 2004 between the first defendant as purchaser and the plaintiff as vendor be specifically performed and carried into execution.

3. On 4 April 2005 at 3 pm the first defendant do attend…

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: [2005] NSWSC 440
Decision Date: 5 May 2005

CaseChat Overview and Summary

The proceedings were brought by the vendor, Zorbas, against the purchaser, Titan Properties, following the purchaser's failure to complete a contract for sale of land. The vendor sought specific performance of the contract as well as costs and interest. The court was required to determine whether it was mandatory to give a purchaser who had failed to comply with an order for specific performance a further period of time before enforcement proceedings were initiated. The court was also required to determine the powers of the court to extend the time for compliance with an order for specific performance, the status of "four day orders" in the NSW procedure, and the burden of proof in relation to the utility of making an order for specific performance.

The court found that there was no mandatory requirement to give a purchaser who had failed to comply with an order for specific performance a further period of time before enforcement proceedings were initiated. The court held that the powers of the court to extend the time for compliance with an order for specific performance were limited and should only be exercised in exceptional circumstances. The court found that "four day orders" were interlocutory orders that were used to give a purchaser a final opportunity to complete the contract before enforcement proceedings were initiated. The court held that the burden of proof in relation to the utility of making an order for specific performance rested with the vendor, and the vendor had not discharged this burden.

The court ordered that the purchaser be given a final opportunity to complete the contract within 4 days of the order. If the purchaser failed to complete within this period, the court would exercise its discretion to grant specific performance. The court also ordered that the purchaser pay the vendor's costs of the proceedings.

Orders