Cruise v Cornish

Supreme Court of NSW|2023-08-18|Before: McGrath J

index INTRODUCTION PROCEDURAL MATTERS EVIDENCE ADJOURNMENT APPLICATION RELEVANT FACTS Contractual Provisions Chronology RELEVANT LEGAL PRINCIPLES Breach Specific performance Ready, willing and able Ongoing supervision Modification of development consent Appointment of trustees under s 66G of the Conveyancing Act DETERMINATION - APPLICATION OF LEGAL PRINCIPLES TO RELEVANT FACTS Breach Specific performance Appointment of trustees under s 66G of the Conveyancing Act RELIEF

INTRODUCTION

Each of the two plaintiffs, Nicola Eagle and Patricia Cruise, in these proceedings seek orders for specific performance of obligations under two contracts for the sale of land located in Berry, New South Wales, which they respectively entered into as purchasers during 2020 with the same vendors, being the defendants, Mark Cornish and Elvi Wood.
The first plaintiff, Ms Cruise, entered into a contract for the sale of land dated 14 May 2020 with the defendants (Cruise Contract) pursuant to which she agreed to purchase and the defendants agreed to sell the land identified as 63A Parker Crescent, Berry, New South Wales, described as proposed Lot 1 in the unregistered plan of the subdivision of Lot 705 in Deposited Plan 1247531 (Lot 1). The Cruise Contract provided that Lot 1 is vacant land and was sold with vacant possession. The purchase price under the Cruise Contract was $750,000, 10% of which ($75,000) was the deposit to be paid by Ms Cruise to the defendants in two instalments, $37,500 on exchange and $37,500 on completion, leaving the balance of $712,500 presently remaining unpaid.

PROCEDURAL MATTERS

The proceedings were commenced by the plaintiffs filing a Statement of Claim on 23 January 2023 in which the plaintiffs sought declarations and orders for specific performance of obligations contained in the Cruise Contract and the Eagle Contract.
On 2 March 2023, the defendants were each separately personally served with a sealed copy of the Statement of Claim.
On 23 March 2023, each of the defendants filed a document entitled "submitting appearance" in the proceedings.
The "submitting appearance" filed by Ms Wood was in accordance with r 6.11(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and approved Form 6B to the UCPR because it contained a statement that she appears and submitted to the making of all orders and the giving or entry of judgment in respect of the proceedings.
The "submitting appearance" filed by Mr Cornish stated that he appears but did not contain a statement that he submitted to the making of all orders and the giving or entry of judgment in respect of the proceedings. Instead, it contained a set of submissions denying that there had been a breach of either the Cruise Contract or the Eagle Contract, stating that he had no objections to the court making the declarations sought "if it finds fit to do so", and contesting the making of any orders for specific performance and costs. In addition, Mr Cornish stated that he would "complete and file a Defence in the approved form no later than 31 March 2023 as required by UCPR 14.4".
Throughout the proceedings, Mr Cornish has not been legally represented and has corresponded in person with the plaintiffs' solicitors, Giles Payne & Co.
On 24 March 2023, in the absence of Mr Cornish, Peden J made orders requiring Mr Cornish to file and serve a defence by 31 March 2023, the plaintiffs to file and serve their evidence by 28 April 2023, Mr Cornish to file and serve his evidence by 2 June 2023 and listing the matter for further directions on 30 June 2023. There was no compliance with these orders by any of the parties.
On 30 June 2023, in the absence of Mr Cornish, Hammerschlag CJ in Eq directed the plaintiffs to notify Mr Cornish of their intention on 14 July 2023 to move the court for final judgment and stood the matter over for directions on that date.
On 11 July 2023, the plaintiffs' solicitors sent an email to Mr Cornish to which they attached 5 affidavits on which they intended to rely in the proceedings.
On 14 July 2023, in the absence of Mr Cornish, Peden J listed the proceedings for hearing on 18 August 2023 and made the usual order for hearing.
On 31 July 2023, the plaintiffs' solicitors sent an email to Mr Cornish to which they attached a letter in which they made reference to the appearance before Peden J on 31 July 2023, the listing of the matter for final hearing on 18 August 2023 and the order for the parties to comply with the usual order for hearing. The letter also attached a draft Amended Statement of Claim and further affidavits to those which were sent to Mr Cornish on 11 July 2023, stating: [i]n preparation for the hearing, our client seeks to move on an Amended Statement of Claim. In accordance with that intention, we provide the following material, in addition to the affidavits previously provided to you, following which appeared a list containing the Amended Statement of Claim and the additional affidavits. The letter concluded with a request that Mr Cornish advise if he consented to the filing of the Amended Statement of Claim as soon as possible.
On 2 August 2023, Mr Cornish sent a letter to the plaintiffs' solicitors which referenced their correspondence of 11 and 31 July 2023, the Amended Statement of Claim and affidavits which had been attached to those letters. In his letter, Mr Cornish stated: In your letter [of 31 July 2023] you have indicated that your client seeks to move on an Amended Statement of Claim and that your client is now seeking consent to the filing of the same. Whilst not specifically noted in your letter it is presumed that this consent is proposed to extend to the filing of the additional material supplied on 31 July 2023. It appears from this correspondence that your client is seeking to rely on the materials provided in correspondence on 31 July 2023 and 11 July 2023 as evidence in support of your client [sic] claims. In respect of your client's request for consent to file the Amended Statement of Claim. 1. The Defendants do not consent to this request. 2. As a trial date has been fixed in these proceedings it would appear that, consent aside, it is necessary that your client seeks leave from the court to file the Amended Statement of Claim.
At the conclusion of his letter, Mr Cornish asserted that it would be necessary for the plaintiffs to seek leave from the court to admit into evidence any of the affidavits served on 31 July 2023, to admit into evidence any material not filed in accordance with the orders made by the court on 24 March 2023 (that the plaintiffs file and serve their evidence by 28 April 2023) and to permit the filing of the Amended Statement of Claim. There was no response to this letter by the plaintiffs.
On 9 August 2023, Mr Cornish sent a letter to the plaintiffs' solicitors in which he referred to the various orders relating to the preparation and production of the Court Book for the hearing. He asked the plaintiffs' solicitors to clarify: …. (2) …if you clients [sic] intend to tender into evidence any of the affidavits and exhibit materials served by email on 11 July 2023…. (3) …if it is your client's intention to move on the Amended Statement of Claim provided by email to the Defendants on 31 July 2023. (4) …if your clients intend to tender into evidence any of the affidavits and exhibit materials that accompanied the Amended Statement of Claim on 31 July 2023.
On 15 August 2023, Mr Cornish sent an email to the plaintiffs' solicitors in which he stated that shortly after receiving an email from the plaintiffs' solicitors on 14 August 2023 he received from them a copy of the index to the Court Book, which he attached to his email. In his email, Mr Cornish said: From the index it appears that the Plaintiffs intend to proceed in this matter on an Amended Statement of Claim. It also appears that the Plaintiffs are seeking to rely on evidence that was not filled [sic] with the court in accordance with the timetable provided in directors [sic] for the case in primary. The Defendants were of the understanding that the Plaintiffs should have sought prior leave from the Court to proceed on the Amended Statement of Claim and for the inclusion of this evidence. The Defendants feel that to proceed with the scheduled hearing in this matter on the materials proposed by the Plaintiffs would be prejudicial to their case. The Defendants asked that the Court review the matter and make any orders that it deems appropriate regarding the Plaintiffs conduct or the appropriate course of action regarding the upcoming hearing in the matter.
At the hearing before me on 18 August 2023, Mr LT Fermanis appeared as counsel for the plaintiffs and Mr Cornish appeared in person. There was no appearance by or on behalf of Ms Wood.
The plaintiffs sought leave to file the Amended Statement of Claim. In summary, the effect of the amendments in the Amended Statement of Claim sought (in addition to declarations and orders for specific performance which had been sought in the Statement of Claim) detailed orders under s 66G of the Conveyancing Act 1919 (NSW) (Conveyancing Act) for the appointment of trustees for the partition of the land at 63 Parker Crescent, Berry, New South Wales to obtain a grant of subdivision, the conveyance of Lot 1 and Lot 2 by the appointed trustees to each of the respective plaintiffs and payment of the proceeds of sale to the defendants after the deduction of the remuneration and expenses of the trustees and various other expenses, taxes and rates.
Mr Cornish opposed the grant of leave to file the Amended Statement of Claim on the basis that there was no appropriate notice of motion accompanying it and that he had not had a proper opportunity to consider and respond to it.
In exercise of my power under s 14 of the Civil Procedure Act 2005 (NSW) (CPA), I dispensed with the requirement for the plaintiffs to file a notice of motion seeking leave to file the Amended Statement of Claim because I was satisfied that it was appropriate to do so and granted leave under s 64 of the CPA for the plaintiffs to make the amendments contained in it and to file it. I did so because it was clear that the Amended Statement of Claim had been received by Mr Cornish on 31 July 2023 in circumstances where he had been explicitly informed that the plaintiffs intended to move on it at the hearing on 18 August 2023, thus giving him a period of nearly 3 weeks to consider the proposed amendments. At the hearing, Mr Cornish was also unable to point to any particular prejudice caused to him by the lack of a notice of motion or by the filing of the Amended Statement of Claim.
My decision in this regard is fortified by my determination that none of the amendments in the Amended Statement of Claim have been decided in favour of the plaintiffs, for the reasons set out below. As a result, there was no injustice to Mr Cornish occasioned by the amendments.
Accordingly, the hearing then proceeded on the issues raised in the Amended Statement of Claim.

EVIDENCE

At the hearing, the plaintiffs relied on the following evidence: 1. Affidavit of Vincent Eugene D'Arcy sworn 27 June 2023 and Exhibit VED-01 to that affidavit; 2. Affidavit of Rodney Eric Eagle affirmed 29 June 2023 and Exhibit REE-01 to that affidavit; 3. Affidavit of Nicola Jane Eagle affirmed 29 June 2023 and Exhibit NJE-01 to that affidavit; 4. Affidavit of Patricia Ellen Cruise affirmed 29 June 2023 and Exhibit PEC-01 to that affidavit; 5. Affidavit of Lee Carmichael affirmed 7 July 2023 and Exhibit LC-01 to that affidavit; 6. Affidavit of Joanne Lisa Hall sworn 17 July 2023; 7. Affidavit of Gavin David King affirmed 20 July 2023; 8. Affidavit of Schon Gregory Condon affirmed 20 July 2023; 9. Affidavit of July Arguijo affirmed 20 July 2023; 10. Second affidavit of July Arguijo affirmed 20 July 2023; 11. Affidavit of Charyn Bello affirmed 20 July 2023; and 12. Affidavit of Paula Louise Becker sworn 18 August 2023.
Mr Cornish did not have any particular objections to any of the affidavits relied on by the plaintiffs and did not seek to cross-examine any of the deponents of them. Mr Cornish did have a general objection to these affidavits on the basis that he had been provided with them late in relation to the timetable and there had been no attempt by the plaintiffs to extend that time.
Mr Cornish relied on material that was part of the evidence referred to in the affidavits, as well as a bundle of further documents which are referred to in the chronology below.

ADJOURNMENT APPLICATION

Towards the conclusion of the hearing, Mr Cornish made an application to adjourn the hearing to enable him to provide expert evidence and make additional submissions dealing with a range of matters which were raised at the hearing, being the expert evidence, the application of s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) and the appointment of trustees. At the hearing, I declined to grant the adjournment sought and stated that I would provide my reasons in this judgment, which I have set out below.
Section 66(1) of the CPA provides that, subject to rules of court, the court may at any time and from time to time by order, adjourn to a specific day any proceedings before it or any aspect of any such proceedings. I therefore had a discretion whether to grant the adjournment sought in this case.
The overriding purpose of the CPA and the UCPR in their application to proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) of the CPA. I must seek to give effect to that overriding purpose when I exercise any power in the CPA or the UCPR: s 56(2) of the CPA.
In seeking to give effect to the overriding purpose, I must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57 of the CPA.
In deciding whether to make any order granting an adjournment and the terms on which any such order is to be made, I must seek to act in accordance with the dictates of justice: s 58(1) of the CPA.
For the purpose of determining what are the "dictates of justice" in this particular case, I must have regard to the provisions of ss 56 and 57 of the CPA (s 58(1) of the CPA) and may have regard to the following matters to the extent to which I consider them to be relevant (s 58(2) of the CPA): 1. the degree of difficulty or complexity to which the issues in the proceedings give rise; 2. the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities; 3. the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties; 4. the degree to which the respective parties have fulfilled their duties under s 56(3) of the CPA; 5. the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings; 6. the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction; and 7. such other matters as the court considers relevant in the circumstances of the case.
In my view, the just, quick and cheap resolution of the real issues in the proceedings acting in accordance with the dictates of justice necessitated the refusal of Mr Cornish's adjournment application. The Statement of Claim was served on Mr Cornish on 2 March 2023 and since that time he has decided to take no active part in the proceedings up until his appearance at the hearing on 18 August 2023.
Mr Cornish did not comply with any of the interlocutory directions of the court in preparation for the hearing. He did not file any defence at all (despite being directed to do so by 31 March 2023 at the directions hearing held before Peden J on 24 March 2023), he did not file any affidavit evidence at all (despite being directed to do so by 2 June 2023 at the directions hearing held before Peden J on 24 March 2023) and he did not file any written submissions at all (despite being directed to do so in accordance with the usual order as to hearing at the directions hearing held before Peden J on 14 July 2023).
Mr Cornish was provided with the draft Amended Statement of Claim and all of the lay and expert affidavit and documentary evidence on which the plaintiffs intended to rely at the hearing on 18 August 2023 as attachments to two letters on 11 and 31 July 2023 from the plaintiffs' solicitors. Mr Cornish was provided with the index to the Court Book by the plaintiffs' solicitors on 14 August 2023 which listed all of the lay and expert affidavit and documentary evidence on which the plaintiffs intended to rely at the hearing on 18 August 2023.
The only responses provided by Mr Cornish in his letters dated 2, 9 and 15 August 2023 to all of these communications from the plaintiffs was to raise procedural matters relating to the need for the plaintiffs to obtain leave to file the Amended Statement of Claim and leave to rely on the evidence. Mr Cornish has determined not to engage in a substantive way with the issues raised in the proceedings, including the evidence on which the plaintiffs rely. In my view, he had sufficient time to address the issues that are raised and the evidence on which the plaintiffs rely.
In addition, insofar as the plaintiffs rely on the expert evidence provided by Mr Carmichael, in my view, that material is of very little weight to the determination of the issues. I do not think I would be assisted by any expert evidence in response on behalf of Mr Cornish. Further, as I have already stated above, for the reasons set out below, I have decided against the plaintiffs' argument that I should appoint trustees to the property. This means that none of the evidence relied on by the plaintiffs which are said to support the contentions on that issue required any response by Mr Cornish. There was no injustice occasioned to Mr Cornish by him not being able to respond to that evidence.
For these reasons, approaching the matter in accordance with the dictates of justice, I decided that the just, quick and cheap resolution of the real issues in the proceedings means that Mr Cornish's application for an adjournment of the hearing should be refused.

Contractual Provisions

Except for the identification of the property, the purchase price, the date, the purchaser particulars and two of the special conditions, each of the Cruise Contract and the Eagle Contract are identical. Each contract is the 2019 edition of the standard New South Wales Law Society sale of land contract (standard form contract), containing the standard disclosure statement for off the plan contracts under s 66ZM of the Conveyancing Act and containing 29 special conditions in the same form, with an additional 2 special conditions in the Cruise Contract (concerning assignment or novation by the defendants and their agreement to receive the 10% deposit by two instalments).
It is asserted by the plaintiffs that the Eagle Contract also contained a clause pursuant to which the obligation to pay a deposit of 10% was reduced, but that is not evident in any of the provisions in the Eagle Contract which only contains 29 special conditions and no other provision amending the requirement to pay a deposit of 10%.
The special conditions to the Cruise Contract and the Eagle Contract contain their own additional definitions to those contained in the standard form contract, including the following: 1. "Council means Shoalhaven Council…" 2. "Development Consent means the notice of determination granted by Council in relation to the Development Site, including any subsequent amendments or additions". 3. "Development Site means the land referred to in the certificate of title as folio identifier 705/124753 [sic]". 4. "Subdivision Plan means the plan of subdivision referenced in the Development Consent". 5. "Subdivision Documents means the Plan of Subdivision, Administration Sheet and the Section 88B instrument". 6. "Sunset Date see special condition 27" (this is an obvious error as the "Sunset Date" is defined to be 1 April 2021 in cl 26.1 of the special conditions (which was not extended by notice from any of the parties)).
The Plan of Subdivision, Administration Sheet and Section 88B instrument were attached to each of the Cruise Contract and the Eagle Contract.
Clauses 23 and 24 of the special conditions in the Cruise Contract and the Eagle Contract provide: Sale subject to subdivision 23. Deposited plan 23.1. The vendor shall proceed with all due dispatch to obtain consent of the council to a plan of subdivision substantially in the form attached and thereafter will lodge the subdivision plan at NSW Land Registry Services for registration as a deposited plan. 23.2. If the subdivision plan has not been registered as a deposited plan by the sunset date, either party may at any time thereafter rescind this agreement by notice in writing given to the other and the provisions of Clause 19 shall apply. 23.3. If the Subdivision Documents are registered after the sunset date but prior to any rescission under clause 23.2 taking effect, then neither party will be entitled to rescind this agreement. 23.4. In no event shall the vendor be liable for any delay in such lodgement or registration unless it is due to a failure to do all things reasonable to achieve registration. 24. Alterations to subdivision plan 24.1. The vendor reserves the right to make any alterations to the subdivision plan as may be required to obtain the approval thereof by the responsible authorities and registration at Land and Property Information NSW as a deposited plan. If any such alteration adversely affects the purchaser and is other than minor, such as an alteration to the lot number of the property or an alteration to any dimension of the property or its position of less than 5%, then the purchaser shall be entitled to rescind this agreement by notice in writing to the vendor within 14 days after being notified in writing by the vendor as to any such alteration, and in this respect time shall be of the essence. In the event that rescission is not notified within such 14 days then the right of rescission shall be lost, and the contract shall become unconditional. 24.2. In the event that the requirements of any responsible authority are sufficiently unusual and onerous as to justify the vendor discontinuing the subdivision application then the vendor may discontinue the application and may rescind the contract provided that satisfactory evidence of the discontinuance has been provided to the purchaser.
The "date for completion" is defined on the front page of each of the Cruise Contract and the Eagle Contract in the following form: See special condition 27 after the date of this contract (clause 15)
Clause 27 of the special conditions in the Cruise Contract and the Eagle Contract provides: 27. Completion of contract 27.1. Completion of this contract is subject to and conditional upon registration of the Subdivision Documents. 27.2. Completion of this contract shall take place within 28 days after the vendor or its solicitors have notified the purchaser or his solicitors in writing that the subdivision plan has been registered as a deposited plan. If for any reason other than default on the part of the vendor completion of this contract does not take place on the due date then without prejudice to any other remedy the vendor shall at any time thereafter be at liberty to serve on the purchaser a notice in writing requiring the purchaser to complete the contract on or before the expiration of 28 days from the date of service of the notice and making time of the essence of the contract. 27.3. Notwithstanding any of the foregoing provisions if completion does not take place on the due date and the delay is not caused by the vendor's fault then in addition to all other monies payable by the purchaser hereunder the purchaser shall thereafter until completion be liable to pay to the vendor interest on the purchase price calculated on a daily basis at the rate of 8% per annum and such interest shall be taken into account on completion of this contract.
None of the parties to either the Cruise Contract or the Eagle Contract have terminated or rescinded it and the defendants as vendors have not made any application under s 66ZL of the Conveyancing Act permitting them to rescind the Cruise Contract or the Eagle Contract.
It is plain that completion of the Cruise Contract and the Eagle Contract requires registration of the Subdivision Documents (being the Plan of Subdivision, Administration Sheet and the Section 88B instrument).
A further provision of each of the Cruise Contract and the Eagle Contract which is relevant for the determination of the issues in these proceedings is cl 17.1 of the standard form contract which provides: Normally, the vendor must give the purchaser vacant possession of the property on completion.
Absent agreement between the defendants and the plaintiffs which would allow the plaintiffs to obtain possession of their respective properties in advance of completion (in which case the provisions of cl 18 of the standard form contract would be applicable), there is otherwise no provision in either of the Cruise Contract or the Eagle Contract which allows for Ms Cruise or Ms Eagle to obtain possession before that time respectively.

Chronology

On 1 October 2019, Ms Cruise paid the amount of $7,500 as a holding deposit in respect of Lot 1 to the defendants, being 1% of the purchase price of Lot 1 ($750,000).
On 6 March 2020, the New South Wales Rural Fire Service (RFS) issued General Terms of Approval and a Bushfire Safety Authority to Shoalhaven City Council as part of the development approval process for 63 Parker Crescent, Berry (RFS GTAs). The RFS GTAs included the following: 1. The development proposal is to comply with the subdivision layout identified in the drawing prepared by SET Consultants numbered, 20699, Revision D dated 6/3/2020. The following restrictions to land use pursuant to section 88 of the 'Conveyancing Act 1919' shall be place [sic] on the property titles: Both lot 1 and lot 2 - to ensure future dwelling development and Class 10 buildings within 6.0 metres of the dwelling are not location [sic] within 29.0 metres of the northern boundary. Lot 1 - to ensure future dwelling development and Class 10 buildings within 6.0 metres of the dwelling are not location [sic] within 10.0 metres of the western boundary. Asset Protection Zones assessed for this subdivision are reliant on a performance based solution. A restriction to the land use pursuant to section 88B of the 'Conveyancing Act 1919' shall be placed both on Lot 1 and Lot 2 to ensure future development of habitable structures within the restricted building envelope is supported by a similar performance-based bushfire solution to achieve a Bushfire Attack Level (BAL) of BAL 29 as outlined in AS3959 and Planning for Bushfire Protection 2019.
On 27 March 2020, Shoalhaven City Council granted development consent, subject to particular conditions, to Mr Cornish in respect of Lot 1 and Lot 2 with a lapse date of 27 March 2025. Condition 5 of the "integrated development conditions" in Part B of the development consent stated that the conditions of the RFS GTAs were included as conditions of the development consent. Condition 35 of the "conditions that must be complied with before a subdivision certificate issued" in Part F of the development consent stated that "[e]vidence of compliance with NSW Rural Fire Service General Terms of Approval, which are included as conditions of this consent, must be submitted to Council from a suitably qualified professional".
On 28 April 2020, Ms Cruise paid the amount of $30,000 which, together with the amount of $7,500 paid earlier as the holding deposit on 1 October 2019, was equal to 5% of the purchase price of Lot 1. This was in advance of the Cruise Contract being exchanged and in accordance with special condition 31 of the Cruise Contract which provided that the remaining 5% of the deposit is payable on completion.
On 14 May 2020, the Cruise Contract was exchanged.
On 2 October 2020, the Eagle Contract was exchanged.
1 April 2021 was the Sunset Date under each of the Cruise Contract and the Eagle Contract.
On 9 March 2021, Catherine Bern (Manager, Development Services of Shoalhaven City Council) sent an email to Adrian Riepsamen (consultant acting for the defendants) and Vicki Dale (Land Registration Officer of Shoalhaven City Council) in which she stated that she had spoken to Mr Cornish about the issue with the RFS GTAs. She stated: The difficulty with this matter is that the consent captures the GTA as conditions of consent. Accordingly, from our perspective, the 88B must reflect the requirements imposed/required by the RFS. Further, Council is risk averse when it comes to bushfire safety, particularly in light of the catastrophic events of 2019/early 20. Council has little appetite to accept alternative wording for the 88B unless it is endorsed by the RFS. In this regard, there are two options: 1. That the RFS is supportive of your 88B in that it achieves the intention an [sic] objective of the said conditions in their GTA; or 2. Formally amend the consent and seek a change to the requirement imposed by the RFS. This is a minor modification category for the purposes of a 4.55 modification unless it is found that the condition etc was imposed erroneously etc. In which case, Council will refund the balance of the fee paid if this is the case.
On 21 April 2021, Mr Cornish sent an email to Ms Cruise informing her that the Sunset Date had now passed, noting that neither of them wished to rescind the Cruise Contract and that the Cruise Contract was still valid and that they could "settle as soon as we have registration" (which I infer to be a reference to completion after the registration of the Subdivision Documents in cl 27).
On 21 April 2021, Bliss Conveyancing (acting for the defendants) sent an email to Southland Conveyancing (acting for Ms Eagle) stating that: Our clients have not been advised by Council as to when the Subdivision Certificate shall issue. They are hopeful by the end of the month but it is in Council's hands.
On 22 June 2021, Shoalhaven City Council sent a letter to SET Consultants (acting for the defendants) in respect of the application for the subdivision certificate for 63 Parker Crescent, Berry, stating the following: I refer to your application for Subdivision Certificate submitted to Council on 2 March 2021. The application submitted was incomplete and remains incomplete as at the date of this letter. The Development Consent dated 27 March 2020 for the subdivision of the above property provided the conditions to be met prior to release of the Subdivision Certificate. The outstanding conditions of the Consent are: 1) Conditions 5 & 35 - Bushfire Certification for NSW RFS General Terms of Approval; 2) Condition 31 d) - s88B instrument needs to be amended to include Condition 1 of RFS General Terms of Approval, in regard to the placement of dwellings on the lots; 3) Subdivision plans to be amended to include the building envelopes, as per approved plans. Due to the above outstanding issues noting the passage of time, we would appreciate your prompt attention to the outstanding matters. Council has limited resources which are better allocated to matters which are progressing. With the above taken into consideration, please provide all outstanding documents within fourteen (14) days. If the documents are not received within this time period the application will be assessed based on the documents currently held.
There is no evidence that the defendants ever sought to address the outstanding conditions of the development consent as outlined in this letter from Shoalhaven City Council.
On 16 July 2021, Shoalhaven City Council refused to issue the subdivision certificate in respect of Lot 1 and Lot 2 for the following reasons: 1. The subdivision certificate application was not supported with sufficient and adequate information to make a favourable determination; 2. The application did not include information demonstrating compliance with relevant….[content missing from document]
It is clear on the evidence that it was the failure of the defendants to provide the information requested by Shoalhaven City Council which has led to the refusal of their consent to the subdivision.
On 6 August 2021, Mr Cornish sent an email to Ms Dale in which he referred to having had a conversation with Matthew Smith of the RFS who in turn said he had spoken to Ms Dale who was requesting a "s 4.55 application to be lodged". In the email, Mr Cornish expressed the view that a s 4.55 application is not the correct way to proceed and instead proposed amending the RFS GTAs under ss 4.50 or 4.57 of the EPAA. Mr Cornish said that he is "not comfortable" with either himself or Shoalhaven City Council bearing the responsibility to request an amendment when the problem is with the GTAs issued by the RFS.
On 8 August 2021, Ms Bern sent an email to Mr Cornish and Ms Dale in which she stated: As mentioned, we are prepared to process a modification application. However, the modification application would be a 4.55 modification - minor category. This is the relevant and correct pathway. The modification application would need to be supported with relevant information and we would refer it to the RFS. I am unable to indicate if the matter would be supported. The referral will be made on the basis that it would be seeking to adjust the GTAs issued by the RFS (and potentially consent conditions). I understand that you are not prepared to pursue a modification application because it [sic] there is an element of risk that it may not be supported. … With regard to the 4.57 pathway you reference, I do not believe that this is appropriate. This would mean that Council is effectively overriding another agency. That agency, being the RFS is the authority and expert in bushfire and it would be perilous for Council to take such action. In fact, I would suggest that this could be potentially ultra vires.
On 6 September 2021, the RFS sent a letter to Shoalhaven City Council in which they referred to their letter of 6 March 2020, said that they had considered additional information submitted to them and set out amended General Terms of Approval (amended RFS GTAs), which included the following: 1. A suitable legal mechanism, to the Council's satisfaction, shall be provided on the title of proposed lots 1 and 2 that identifies the Bush Fire Attack level (BAL) 29 lines as shown on the plan prepared by SET Consultants titled 'Bushfire Mitigation Plan for Proposed Subdivision Lot 700 DP 1247531 63 Parker Crescent, Berry' Reference 20699, amendment D dated 06 March 2020. The mechanism shall note: - (i) that future dwelling is located outside of the above referenced BAL-29 lines may require a Bushfire Attack Level (BAL) and greater than BAL-29 and will be assessed in accordance with Planning for Bushfire Protection 2019; and - (ii) the BAL-29 lines identified above were determined based on the NSW RFS Short Fire Run Policy, methodology and associated modelling under Planning for Bushfire Protection 2019. - (iii) future dwellings may require and use the same approach to achieve BAL-29 construction under Chapter 7 'infill development' of Planning for Bushfire Protection 2019 (or other BAL's as per the same approach). … The previous bushfire safety authority issued on Friday, 6 March 2020 still applies…
The effect of the amended RFS GTAs is to increase the building envelope on each of the lots comprising the subdivision for 63 Parker Crescent, Berry, including each of Lot 1 and Lot 2.
On 30 September 2021, Ms Bern of Shoalhaven City Council sent an email to other staff within the Council in which she referred to having had a conversation with Mr Cornish. In the email, Ms Bern stated as follows: Long story short, Mark Cornish is set on pursuing the 4.57 path. This means that there will be a lengthy document coming through this afternoon via Council@ I said we could have had a modification in and out of here by now if he would have gone down this path, given that the RFS has reissued its GTAs quite some time ago. He doesn't want to do a mod as he is concerned that the RFS will change its mind. He also said his lawyers believe it's not a minor application and as such would need to be re - referred to the RFS and he doesn't want the 'risk'. I said in my opinion the risk of the RFS changing its mind in doing something more onerous etc in light of the history of the matter, is slim.
Regular communications between Ms Cruise and Mr Cornish in the period from September 2020 to July 2021 and between Ms Eagle and Mr Cornish in the period from February 2021 and September 2022 have involved numerous assurances by Mr Cornish that he is attending to the steps required to obtain the consent of Shoalhaven City Council to a plan of subdivision of Lot 1 and Lot 2, including addressing the issue of the requirements of the RFS. There is no evidence of what steps Mr Cornish has actually taken.
On 18 November 2021, the husband of Ms Eagle (Rodney Eagle) spoke to Ms Bern during which Ms Bern stated that the original development consent referred to the old documentation (being the original RFS GTAs), that the vendors should lodge an application to modify the consent to include the amended RFS GTAs pursuant to s 4.55 of the EPAA and that this "should be pretty straightforward". During the conversation, Ms Bern said that a "s 4.55 application is achievable and totally resolvable to clean up the DA [development application] consent to current GTAs". She further stated that the vendors would prefer to use s 4.57 of the EPAA, a process which is very rare, usually only used to revoke a consent, it would be a slow process for the Council and would leave the Council open to damages. Ms Bern concluded by saying that the Council had receivedno communication from Mr Cornish since early October 2021.
In January 2022, a representative of Shoalhaven City Council told Ms Eagle and Mr Eagle that the defendants needed to apply to amend the development consent to incorporate the amended RFS GTAs by making an application under s 4.55 of the EPAA.
On 12 January 2022, Mr Eagle received written advice from Lee Carmichael (a qualified and experienced town planner and development consultant) that the appropriate way for the defendants to proceed would be to make an application under s 4.55 of the EPAA to request that Shoalhaven City Council modify the development consent to take into account the amended RFS GTAs, which would involve: 1) Amended bushfire mitigation plan removing the dwelling envelopes. 2) Covering letter from a bushfire consultant. 3) A copy of the most recent GTA's for ease of reference. 4) Letter clearly outlining the requested amendments and justifying the use of Section 4.55. 5) Completed modification form and payment of prescribed fee.
On 8 March 2022, Ms Dale of Shoalhaven City Council sent an email to Ms Cruise stating that the subdivision certificate application for the property at 63 Parker Crescent, Berry was refused on 16 July 2021 and "Council has not received a further application for Subdivision Certificate since that date".
On 23 March 2022, Mr Cornish sent an email to Ms Dale of Shoalhaven City Council which referred to a discussion the previous day and attached the RFS GTAs (6 March 2020), the Shoalhaven City Council development consent (27 March 2020), the amended RFS GTAs (6 September 2021), along with a set of notes described as "a shorthand summary for review regarding the same as requested". In the email, Mr Cornish stated: I believe the case law does support the incorporation of the amended GTAs in this instance and I can provide additional information if required. Please feel free to give me a call to discuss if required and I look forward to hearing from you soon.
There is no evidence of any discussion between Mr Cornish and Ms Dale on 22 March 2022 or at any time after the email. There is no evidence of there being any response to the email.
On 2 April 2022, Mr Cornish met with Ms Eagle and Mr Eagle at their home. During the course of that meeting, Mr Cornish said that he could lodge a new development application to resolve the issues but that Ms Eagle would have to rescind her contract and buy the property on the basis of the new development application for the site, which she could purchase for the same price. He asserted that Ms Cruise had said that she was going to rescind the Cruise Contract. Mr Cornish said that the best thing for him would be that Ms Eagle sued him so that he could then sue Shoalhaven City Council and the RFS. In response, Mr Eagle said that the best thing for them would be to complete and that they did not want to rescind. This was the last substantive communication between Mr Cornish, Ms Eagle and Mr Eagle.
In submissions at the hearing on 18 August 2023, Mr Cornish said that at the end of the meeting on 2 April 2022, he ceased to take any further action to meet the obligations in cl 23.1 of the Cruise Contract and the Eagle Contract.
Shortly after the meeting with Mr Cornish, Ms Eagle and Mr Eagle had a telephone conversation with Ms Cruise in which Ms Cruise said that she had never said that she might rescind and that she did not intend to rescind.
On 28 March 2023, Mr Eagle had a conversation with Ms Dale of Shoalhaven City Council in which he asked her whether the Council had agreed to proceeding in a way that suited everyone but not under s 4.55 of the EPAA. Ms Dale replied "no" and that she had just come from an internal meeting about how to reply to Mr Cornish and she could not tell Mr Eagle anything more.
There is no evidence that the defendants have taken any steps to apply to Shoalhaven City Council to modify the development consent of 27 March 2020 to incorporate the amended RFS GTAs.
There is no evidence that the defendants have taken any steps to obtain Shoalhaven City Council's consent to a plan of subdivision of Lot 1 and Lot 2 and lodge the plan of subdivision at NSW Land Registry Services for registration as a deposited plan.

RELEVANT LEGAL PRINCIPLES

There are a number of legal principles which are relevant to the determination of the plaintiffs' claims to be entitled to an order for specific performance of the Cruise Contract and the Eagle Contract or, in the alternative, an order for the appointment of trustees under s 66G of the Conveyancing Act.
First, the plaintiffs must establish that the defendants have breached each of the Cruise Contract and the Eagle Contract.
Second, the plaintiffs must establish that they are entitled to an order for specific performance, which involves consideration of the extent to which the court would be involved in the ongoing supervision of the contracts, whether it is necessary for the plaintiffs to demonstrate that they are ready, willing and able to perform their respective contracts, and the likelihood of a modification of the development consent granted to the defendants on 27 March 2020.
Finally, in the alternative to specific performance, the plaintiffs seek an order for the appointment of trustees pursuant to s 66G of the Conveyancing Act.
Each of these relevant legal principles is dealt with in turn below.

Breach

The question of whether there has been a breach of contract for failure to perform an obligation in the time provided under it is essentially one which arises from the proper construction of the contract and the facts of what was done or not done, the onus of proof for which lies on the promisee (here, the purchasers) seeking to enforce it: see Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 at 230.
In the present case, the relevant cl 23.1 of the Cruise Contract and the Eagle Contract alleged to have been breached is the obligation of the vendors in the following terms: The vendor shall proceed with all due dispatch to obtain consent of the council to a plan of subdivision substantially in the form attached and thereafter will lodge the subdivision plan at NSW Land Registry Services for registration as a deposited plan.
A very similar obligation was the subject of consideration in Pelley v Tebran Pty Ltd [2006] NSWSC 1072 in relation to a claim by a purchaser for specific performance of a contract for sale of land. The key issue was whether the vendor proceeded with all due dispatch as required by a special condition of the contract to obtain council consent to a proposed plan of subdivision and thereafter lodge the plan for registration as a deposited plan. At [155]-[165], Hall J said: (b) Legal principles 155 It was common ground in these proceedings that the legal onus lies on the plaintiffs as purchasers to prove that the defendant, as vendor, had breached the special condition. In that respect see Plumore (supra) and Masters v. Belpate Pty. Limited [2001] NSWSC 169 per Hodgson, CJ. in Eq. at [58]. 156 In circumstances where relevant facts are regarded as peculiarly within the knowledge of the vendor, it is accepted that there may be an evidentiary onus on the vendor to lead evidence as to what happened as otherwise, inferences may be drawn against the vendor, on matters such as unexplained delays: Apollo Shower Screen Pty. Limited v. Building & Construction Industry Long Service Payments Corporation (1995) 1 NSWLR 561 at 565-565; Hawes v. Cuzeno Pty. Limited [1999] NSWSC 1164 at [41] and Masters v. Belpate (supra) at [59]. 157 In relation to the express obligations of a developer/vendor, there has been a divergence of judicial opinion as to whether delays that are attributable to independent contractors in carrying out relevant tasks would or would not involve a breach by the vendor of contractual obligations. The divergence of opinion in this respect was noted and discussed by Santow, JA. in Churnin (supra) at [46] to [52]. 158 It is unnecessary, for the purposes of the present proceedings, to determine the application of special condition 2.1 upon the basis of whether any delays attributable to Hopkins Consultants, ipso facto, involved a breach by the defendant of its contractual obligations. Even if the approach to express contractual obligations of the kind the subject of the proceedings in Masters v. Belpate (supra) were adopted, it is clear from the judgment of Hodgson, CJ. in Eq. in that case, at [63], that a vendor may still have obligations even if specialist expertise has been employed. 159 A number of propositions may be derived from the observations made by Hodgson, CJ. in Eq. in that case concerning a provision that made completion conditional on the registration of a strata plan within 30 months from the date of the agreement and a right of rescission in the event that registration was not so effected. Those propositions may be formulated as follows:- (a) The obligation under an express contractual condition of the kind there in question relates to the progress of matters not involving specialist expertise, that is, matters that are usually attended to by a developer. (b) In relation to such matters, the obligation of the vendor/developer is an unqualified one. (c) The obligation imposed by such conditions is objective in nature and is not conditioned on the subjective knowledge or ability of a particular vendor. (d) The matters that are usually attended to by a developer as referred to in (a) above would include:- (i) the co-ordination of the documentation necessary for the application, the subject of the contractual obligation; (ii) co-ordinating specialist contractors; (iii) negotiations with councils and, in some circumstances, with adjoining owners. 160 Accordingly, on the approach of Hodgson, CJ. in Eq. in Masters (supra), there may exist associated or collateral breaches by the vendor/developer itself (eg., in the selection of the contractors, in the provision of the instructions and information, in monitoring progress, and/or in failing to replace the specialist expertise when that should have been done). (c) The relationship between a breach of contractual conditions and the expiration of the time for performance of the contractual obligation 161 In construing special condition 2.1 in the present case and ascertaining the nature of the obligation created by it, I draw assistance from the analysis of Santow, JA. in Churnin (supra). In that respect:- • The term "proceed" in the expression in the special condition, "the vendor will proceed" , based upon Macquarie Dictionary meanings, "to move or go forwards" , "to go on with or carry on any action or process", "to go on to do something" , involves, as his Honour observed, the notion of deliberate process, but not an absolute or unqualified requirement that falls upon a vendor come what may or beyond what is within the power of the vendor to accomplish. As in Churnin, where the word "shall" was employed so the word "will" in special condition 2.1 is in contrast to the stronger word "must" . • The word "due" qualifies "despatch" in special condition 2.1. Santow, JA. observed that the word "due" in context means, in the words of the Macquarie Dictionary, "rightful" , "proper" , "fitting" as in the expression, "due care" or "in due time" . 162 The Shorter Oxford English Dictionary defines "dispatch" (also despatch) as including:- "4. Prompt settlement or accomplishment, promptitude; speed, efficiency, rapidity of progress" and as a transitive verb: "get (a task or piece of business) promptly done; accomplish, finish off, conclude." 163 The construction of the special condition in the light of the above principles and propositions requires that the plaintiffs establish fault in the defendant as vendor occasioning delay with consequent failure by the defendant to obtain the consent of Hastings Council and a failure to lodge the plan for registration within the stipulated period of nine months. 164 Accordingly, for the plaintiffs to succeed, such failure must be attributable to the defendant's failure to proceed with "all due despatch", the word "all" giving added emphasis to the expression "due despatch". 165 A provision such as special condition 2.1 may require a developer/vendor to take a number of affirmative steps. These may include such a vendor or someone acting on the vendor's behalf appropriately instructing agents and contractors, which instructions may include advice as to competing project priorities, ensuring the co-ordination of contractors, agents and others with a view to ensuring the orderly despatch of work and an obligation to oversee, monitor and review planning, construction and other operations.
The principles from Pelley and the cases cited in it emphasise that a party under an obligation to act with "all due dispatch" must act in a timely way with due care, which is determined objectively, the onus being on the plaintiff to prove those matters, although an evidentiary onus falls on the defendant for matters peculiarly within its own knowledge.

Specific performance

Specific performance is an equitable remedy requiring a contracting party to carry out one or more contractual obligations resting on that party: see Rossi Recycling Pty Ltd v Buckland Valley Pty Ltd [2022] VSC 467 at [564].
The principles that govern the question of whether or not specific performance of a contract should be granted are long standing and well established, particularly in relation to contracts for the sale of land where damages are not regarded as an adequate remedy available to a purchaser for failure by a vendor to complete: see Adderley v Dixon (1824) 1 Sim & St 607 at 610; 57 ER 239 at 240; Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146 at 151.
An order for specific performance in relation to a contract for the sale of land pending subdivision is a discretionary exercise, and may be granted in circumstances where: 1. the contract was validly entered into between the parties; 2. there has not been an effective recission, termination or repudiation of the contract; 3. the contract has not been abandoned or abrogated (mutually or unilaterally); 4. at all relevant times the party advocating for the order of specific performance has been, and remains, ready, willing and able to perform their essential obligations under the contract in the event that the proposed plan of subdivision becomes registered; and 5. specific performance should not be declined on discretionary grounds such as hardship or because of impossibility. See Klein v McMahon [2017] NSWSC 1531; Parkes & Anor v Mamo [2016] NSWSC 1129; DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 434.

Ready, willing and able

In order to obtain an order for specific performance of a contract for the sale of land, it is often said that the moving party must be ready, willing and able to perform their essential obligations under the contract and complete the purchase. This is a discretionary matter because even a failure to plead it is not fatal to a plaintiff's case (although both plaintiffs did plead it in these proceedings): see Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 640.
It has even been held that if a defendant to an action for specific performance does not put the plaintiff to proof on the issue of whether a plaintiff is ready, willing and able, then the plaintiff need not adduce evidence to show that he or she is ready and willing: see Nobleza v Lampl (1986) 85 FLR 147 at 152.
The modern approach of equity is that if a party seeking specific performance is demonstrably ready, willing and able to complete a contract, then relief will be given: see Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1132 at [67].
In Klein, at [43], Darke J noted that he was "comfortably satisfied" of this requirement in circumstances where the plaintiff had arrangements in place to borrow a substantial proportion of the purchase price under the contract, with the balance to be provided by way of his personal funds, and there was "some documentary evidence that suggested that the plaintiff was at times able to renew his finance approval for the purchase".
In Parkes, at [52]-[54], Darke J noted that he was satisfied of this requirement in circumstances where the plaintiffs are "particularly attracted to the property" and have been successful in obtaining approval for finance which would be sufficient to enable them to complete the contract for the purchase of the property.

Ongoing supervision

The extent to which any ongoing supervision on behalf of the court in regard to overseeing the performance of the contract is needed is a factor for the court to take into account and does not present as a disqualifying factor: Rossi at [589].
Parkes involved an application for specific performance of a contract for the sale of land pending subdivision which contained a special condition requiring the vendor to proceed with all due dispatch to obtain the consent of the local council to the proposed plan of subdivision, and thereafter lodge the subdivision plan for registration as a deposited plan. Darke J (at [59]) ordered the vendor to do such acts and take such steps as are required to discharge his obligations under the contract concerning the registration of the plan of subdivision and ordered that, if registration is obtained, the contract be further performed and carried into effect by the parties.
Klein involved a similar application for specific performance of a contract for the sale of land containing a special condition requiring the vendor to proceed with all due dispatch to obtain consent of the council to a plan of subdivision. Darke J, in circumstances where his Honour noted (at [44]) that "there is good reason to think that the defendants will now make every effort to complete the sale", made an order for specific performance of the contract for sale.
In both cases, whilst it was not suggested in either circumstance that it was not possible for subdivision to occur, Darke J granted the parties liberty to apply in the event that difficulties arise in the course of performance of the contract.
As outlined by Slattery J in Santangelo v Yates Holdings Victoria Pty Ltd [2022] NSWSC 397, in considering what relief should be granted in circumstances where the court should maintain supervision over the performance of a contract, at [79]-[80]: 79 … If the Court grants a decree of specific performance, from that time both the contract and its performance are under the control of the Court: PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) ('On Equity') at [16.1030]. Supplemental orders can always be made after a decree of specific performance: On Equity [16.1030]. When considering whether such an order should be made, it does not matter that the relevant facts arose after the decree: Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104; BC200703270 at [125] (Australian Hardboards). That decree of specific performance gives rights to both parties under the contract, and both are at liberty to apply to the Court for clarification about their rights under the contract and the working out of the specific performance order: Australian Hardboards at [77]. 80 In addition to granting a decree of specific performance, based on authority such as Australian Hardboards, the Court will grant the parties liberty to apply to resolve any further issues that may arise in completing the contract, the further performance of which is now under the Court's supervision. The file will be retained in the chambers of the trial judge until the Court is informed that the contract has been completed. The grant of a decree for specific performance means that it is not necessary to make a declaration as to the validity and enforceability of the contract as that is implicit in the grant of the degree.
Similarly, in Mordue v Kroone [2009] NSWSC 255, involving the enforcement of a decree of specific performance made by Hammerschlag J (as his Honour then was), Brereton J (as his Honour then was) referred to a set of directions made by Rein J, apparently by consent, for the further implementation of the decree, as follows: 8 In the course of that disputation, the Mordues brought a contempt application against Ms Kroone. That application was dismissed by Rein J, by consent, and on 26 March 2008 his Honour, apparently also by consent, made directions for the further implementation of the decree for specific performance, as follows: 1. The Defendants shall lodge with the Parkes Shire Council ["Council"] a development application ("the DA") to subdivide the two one hectare lots in compliance with the Order dated 30 March 2007 in accordance with the plan prepared by Arndell Surveying a copy of which is annexed hereto and marked "A" ["the subject lots"] from the remainder of Lot 12 within twenty one days and do all things and sign all documents reasonably necessary to progress the DA. 2. The Plaintiff shall reimburse the Defendant the costs and expenses associated with the lodgement of the DA including the costs and expenses associated with obtaining any plans, reports or other such material required by Council to accompany the DA within fourteen days of the request for such reimbursement being made by the Defendant. 3. The Defendant shall provide to the Plaintiff a copy of the approval ["the approval"] or refusal of the DA from Parkes Shire Council with seven days of receipt from the approval or refusal from council. 4. The Plaintiff do all things and sign all documents necessary to satisfy each and every condition of the approval including but not limited to constructing an access, providing services and paying Council contributions and other fees and charges in respect of each Lot in the subdivision including Lot 3. In this regard the Defendant shall co-operate with the Plaintiff and in so doing shall sign all documents and do all such things reasonably required to satisfy those conditions but the Defendant shall not be required to incur any cost or expenses in so co-operating. 5. Once the Plaintiff notifies the Defendant the terms of the approval have been satisfied the Defendant shall procure the execution of the original plan of subdivision by Council and mortgagee and shall lodge that plan of subdivision by Council and mortgagee and shall lodge that plan for registration at the LPI. The Defendant shall not be required to lodge that Plan unless the Plaintiff has provided to the Defendant a bank cheque in favour of the LPI in an amount of the lodgement fee at LPI and consent from the caveator and from this Honourable Court [if necessary] to the lodgement of the plan. All other costs and expenses incurred in this process including the costs of obtaining mortgagee's consent and production of title deeds shall be reimbursed by the Plaintiff within seven days of receiving a request from the Defendant for such reimbursement. 6. The Defendant will notify the Plaintiff within three days of receiving notification from the Defendant mortgagee that the Certificates of Title from the subject lots have been delivered by the LPI to that mortgagee. The Plaintiff shall prepare a withdrawal of the caveat and any acknowledgement or other document necessary to affect removal of the notification of the orders by this Honourable Court in so far as they effect Lot 12 within fourteen days of receiving such notification from the Defendant and shall within that period notify the Defendant that is in a position to accept and transfer of the subject lots and to remove from the remainder of Lot 12 the caveat and the orders of the Honourable Court. The parties shall within a further fourteen days from this last mentioned notification by the Plaintiff to the Defendant exchange the documents necessary to effect a transfer of the subject lots from the defendant to the Plaintiff without encumbrances and remove the caveat and orders from the residue of the land held by the Plaintiff. At this time the plaintiff will pay to the Defendant and amount equivalent to the Defendant's reasonable conveyancing costs as provided for in Special Condition 24 of the Agreement for Sale. 7. Each party has liberty to apply on three (3) days notice to a judge of the court. 8. The plaintiffs to pay the defendants costs associated with the re listing of the matter before the Court and attendance before the Court for directions, as agreed or assessed.

Modification of development consent

If an order for specific performance of each of the Cruise Contract and the Eagle Contract is to be made, it will be necessary for the defendants to apply to Shoalhaven City Council pursuant to s 4.55 of the EPAA for a modification of the development consent granted to them on 27 March 2020 to incorporate the amended RFS GTAs as the existing consent refers to the superseded RFS GTAs.
Section 4.55 of the EPAA is in the following terms: 4.55 Modification of consents - generally (cf previous s 96) (1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6) and Part 8 do not apply to such a modification. Note - Section 380AA of the Mining Act 1992 provides that an application for modification of development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned. (1A) (Modifications involving minimal environmental impact) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. (2) (Other modifications) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. (5) (Repealed) (6) (Deemed refusals) The regulations may make provision for or with respect to the following - (a) the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent, (b) the effect of any such deemed determination on the power of a consent authority to determine any such application, (c) the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act. (6A), (7) (Repealed) (8) (Modifications by the Court) The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.
The relevant principles which would be applied by Shoalhaven City Council in the consideration of such an application under s 4.55 of the EPAA are those set out by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (approved in Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) [2018] NSWLEC 153; Progress East Pty Ltd v Randwick City Council [2019] NSWLEC 1029; Garling v Northern Beaches Council [2022] NSWLEC 1512).
In Agricultural Equity at [173], Pepper J said (in respect of the predecessor s 96(2) of the EPAA) (authorities omitted): The applicable legal principles governing the exercise of the power contained in s 96(2)(a) of the EPAA may be stated as follows: (1) first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985. Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity"; (2) the modification power is beneficial and facultative; (3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to; (4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development; (5) the term "substantially" means "essentially or materially having the same essence"; (6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions; (7) the term "modify" means "to alter without radical transformation"; (8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a); (9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)"; and (10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed".

Appointment of trustees under s 66G of the Conveyancing Act

As an alternative to an order for specific performance, the plaintiffs sought orders from the court appointing trustees for the partition of 63 Parker Crescent, Berry under s 66G of the Conveyancing Act.
Section 66G of the Conveyancing Act is in the following terms: 66G Statutory trusts for sale or partition of property held in co-ownership (1) Where any property (other than chattels) is held in co-ownership the court may, on the application of any one or more of the co-owners, appoint trustees of the property and vest the same in such trustees, subject to incumbrances affecting the entirety, but free from incumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition. (1A) Subject to this section, on the death of a co-owner, any proceedings by or against the co-owner under subsection (1) (whether instituted before or after the commencement of this subsection) survive against or for the benefit of the estate of the deceased co-owner despite, in the case of a joint tenancy, the rule of survivorship. (2) Where the entirety of the property is vested in trustees or personal representatives, those trustees or personal representatives shall, unless the court otherwise determines, be appointed trustees on either of such statutory trusts, but subject, in the case of personal representatives, to their rights and powers for the purposes of administration. (3) (a) Where the entirety of the property is vested at law in co-owners the court may appoint a trust corporation either alone or with one or two individuals (whether or not being co-owners), or two or more individuals, not exceeding four (whether or not including one or more of the co-owners), to be trustees of the property on either of such statutory trusts. (b) On such appointment the property shall, subject to the provisions of section 78 of the Trustee Act 1925, vest in the trustees. (4) If, on an application for the appointment of trustees on the statutory trust for sale, any of the co-owners satisfies the court that partition of the property would be more beneficial for the co-owners interested to the extent of upwards of a moiety in value than sale, the court may, with the consent of the incumbrancers of the entirety (if any), appoint trustees of the property on the statutory trust for partition, or as to part of the property on the statutory trust for sale, and as to part on the statutory trust for partition, but a purchaser shall not be concerned to see or inquire whether any such consent as aforesaid has been given. (5) (a) When such trustees for partition have prepared a scheme of partition they shall serve notice in writing thereof on all the co-owners of the age of eighteen years or upwards, and any of such co-owners dissatisfied with the scheme may, within one month after service upon him or her of such notice, apply to the court for a variation of the same. (b) Where any of the co-owners is a person under mental disability, the notice shall be served on the person charged by law with the management and care of the property of the person under mental disability or, if there is no person so charged, on such officer of the court as may be prescribed by rules of court. (c) Where any of the co-owners is a minor or a person who cannot be found or ascertained, or as to whom it is uncertain whether the co-owner is living or dead, the trustees may act on behalf of the minor or person, and retain land or other property to represent the co-owner's share. (6) In relation to the sale or partition of property held in co-ownership, the court may alter such statutory trusts, and the trust so altered shall be deemed to be the statutory trust in relation to that property. (7) Where property becomes subject to such statutory trust for sale - (a) in the case of joint tenancy, a sale under the trust shall not of itself effect a severance of that tenancy, (b) in any case land shall be deemed to be converted upon the appointment of trustees for sale unless the court otherwise directs. (8) This section applies to property held in co-ownership at the commencement of the Conveyancing (Amendment) Act 1930 and to property which becomes so held after such commencement. (9) This section does not apply to property in respect of which a subsisting contract for sale (whether made under an order in a suit for partition, or by or on behalf of all the co-owners) is in force at the commencement of the Conveyancing (Amendment) Act 1930 if the contract is completed in due course, nor to land in respect of which a suit for partition is pending at such commencement if a decree for a partition or sale is subsequently made in such suit.
The term "co-ownership" is defined in s 66F of the Conveyancing Act in the following terms: 66F Definitions In this Division - (1) Co-ownership means ownership whether at law or in equity in possession by two or more persons as joint tenants or as tenants in common; and co-owner has a corresponding meaning and includes an incumbrancer of the interest of a joint tenant or tenant in common.
It is recognised that a purchaser who enters into a contract for the sale of land has an equitable interest in the property before completion, and therefore has ownership in equity: see Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100 at [98]-[102].
The key determinant for an order under s 66G is whether there is ownership in law or equity "in possession" by two or more persons as joint tenants or tenants in common. In Lewin v Lewin [2019] NSWSC 380, Darke J had to consider whether co-owners of shares could obtain an order under s 66G of the Conveyancing Act. In finding that they could, Darke J made reference to the decision of Young J (as his Honour then was) in Commonwealth Bank of Australia v MacDonald [2000] NSWSC 553 concerning ownership "in possession": 25 The next question to consider is whether that property is held in "co-ownership" for the purposes of the section. The parties' rights with respect to the shares in the present case are very different to those of the husband and wife in Commonwealth Bank of Australia v MacDonald (supra). Here, there is only one share certificate issued by the company. That share certificate records that the plaintiff and defendant hold the 5250 shares as tenants in common in equal shares. The plaintiff and defendant are thus equally entitled to the entirety of the shares. 26 However, is that an ownership "in possession" as required by the definition of "co-ownership"? In my opinion it is. As stated by Young J in Commonwealth Bank of Australia v MacDonald (supra) at [57], the definition of "co-ownership" requires an entitlement to be in possession of the property. In the present case, the property is the 5250 shares in Birtley Towers Ltd. The plaintiff and the defendant are the holders of the shares. They hold them as tenants in common in equal shares. They are entitled to possession of the shares in the sense that they are presently entitled to the rights that are attached to the shares, including the rights in respect of the Unit and rights to dividends. In my view, that is sufficient to constitute ownership of the shares as tenants in common "in possession" for the purposes of the definition of co-ownership. 27 Physical possession is not required, else joint tenants or tenants in common in fee simple of real property which is subject to a lease would fall outside the concept of "co-ownership" for the purposes of s 66G. The notion of ownership "in possession" must be read in its context as an element of a provision that potentially extends to almost any type of property, other than chattels. (A separate provision of the Conveyancing Act, s 36A, deals with the division of chattels, and may authorise sale to facilitate division.) Where, as here, the property can be seen to be owned, either at law or in equity, by two or more persons in common, the ownership should be taken to be relevantly "in possession" if the co-owners are presently entitled to the rights that inhere in the property.
A right in possession must therefore exist for a person to obtain an order under s 66G of the Conveyancing Act.

DETERMINATION - APPLICATION OF LEGAL PRINCIPLES TO RELEVANT FACTS

Breach

I am satisfied that the defendants have breached cl 23.1 of the Cruise Contract and the Eagle Contract by failing to proceed with all due dispatch to obtain the consent of Shoalhaven City Council to the plan of subdivision and then lodge that subdivision plan at NSW Registry Services for registration as a deposited plan. Relying on the observations in Pelley at [159], the obligation in cl 23.1 is expressed in an unqualified and objective way, not conditioned by the subjective knowledge or ability of the defendants. Further, the reference to "all due dispatch" is one which emphasises the promptness with which the defendants were required to act: Pelley at [162].
The evidence demonstrates that these steps of consent and lodgement have not been taken by the defendants. I am more readily able to draw the inference that they have not attempted to do so in a timely fashion because of the lack of evidence from Mr Cornish on all of the steps he has taken with due care (if any), when those facts are peculiarly within his knowledge: applying the principles from Pelley at [156]-[165].
I am not satisfied with Mr Cornish's explanation that it is not appropriate for him to apply under s 4.55 of the EPAA to seek a modification of the existing development consent from Shoalhaven City Council to remove the existing RFS GTAs and replace them with the amended RFS GTAs (which themselves apply much of the original RFS GTAs). His views in that regard are misconceived because such an application would appear to be relatively straightforward to make and for Shoalhaven City Council to consider. It is an application that Shoalhaven City Council have repeatedly invited Mr Cornish to make, but he has refused to do so for his own particular reasons.
Even taking the gloss that Mr Cornish seeks to put on the obligation in cl 23.1 that it only required him to "do all things reasonably necessary" (a submission I reject), I think the defendants are still in breach of cl 23.1 because it was reasonably necessary for them to apply under s 4.55 of the EPAA to seek a modification of the existing development consent from Shoalhaven City Council and they have not done so.
Mr Cornish also submitted that the change between the RFS GTAs and the amended RFS GTAs is so substantial that s 4.55 of the EPAA has no application to it because it would not be the same subdivision plan. I do not agree. In my mind, the change is relatively minor, which is the same view which is held by officers of Shoalhaven City Council. In any event, there is an express provision in cll 24.1 and 24.2 of the Cruise Contract and the Eagle Contract which concerns alterations, that Mr Cornish submitted had no application in the current circumstances.
Now that the Sunset Date of 1 April 2021 has passed without the registration of the deposited plan, then under cl 23.2, either party may rescind the Cruise Contract and the Eagle Contract respectively. But they have chosen not to do so. This means the obligation of the defendants to perform the matters stated in cl 23.1 remains in place.
Once the Subdivision Documents are registered after the Sunset Date but without any party rescinding, cl 23.3 provides that neither party is entitled to rescind the Cruise Contract and the Eagle Contract.
In my view, the defendants are required to make an application under s 4.55 of the EPAA to seek a modification of the existing development consent as a first step to meet their obligation to act with "all due dispatch" to obtain the consent of Shoalhaven City Council to the plan of subdivision and their failure to do so constitutes a breach of cl 23.1 of the Cruise Contract and the Eagle Contract.

Specific performance

The finding that each of the Cruise Contract and the Eagle Contract has been breached by the defendants enlivens my discretion to order specific performance of the obligations contained in them. Whilst I have a concern about the role of the court in undertaking ongoing supervision of the obligations required to be performed by the defendants, such a matter is a discretionary consideration and not a bar to obtaining an order for specific performance: Rossi at [589].
In my view, the defendants did not place any material before the court to support a submission that the plaintiffs are not ready, willing and able to complete the Cruise Contract and the Eagle Contract respectively. There is no suggestion that either of the plaintiffs are in breach of their contractual obligations. In any event, the plaintiffs pleaded that they are ready, willing and able to complete the Cruise Contract and the Eagle Contract respectively and are demonstrably ready, willing and able to perform as indicated by them continuing to pursue Mr Cornish for updates on the status of the approval of the subdivision plan by Shoalhaven City Council during 2020, 2021 and 2022, having Ms Eagle take the step of seeking expert advice from Mr Carmichael in January 2022 on the best way to obtain that approval, and declining invitations from Mr Cornish to rescind the contracts.
This court has demonstrated a preparedness to make orders for specific performance of the obligations in contracts for the sale of land even in circumstances where it has been necessary to set out a very detailed series of steps required to be taken by the vendor under them: see Mordue at [8]; Santangelo at [79]-[80]; Parkes at [59]; Klein at [44].
I am satisfied that an order for specific performance which required the defendants to apply to Shoalhaven City Council under s 4.55 of the EPAA to modify the existing development consent would not involve undue ongoing supervision by the court. This is because such an application appears to be relatively straightforward as Shoalhaven City Council would have to be guided by the principles expressed in Agricultural Equity - approaching the application in a facultative and beneficial way to compare what is sought in the amended RFS GTAs compared to the RFS GTAs to determine if the modified development is substantially the same as the existing approved development.
If the defendants are ordered to specifically perform their obligations in cl 23.1 of each of the Cruise Contract and the Eagle Contract, it will be appropriate for the parties to come back before the court to report if the consent of Shoalhaven City Council to the subdivision plan has not been forthcoming and, if so, what further steps need to be taken for the specific performance of the contracts. If the consent of Shoalhaven City Council is not given, then any further orders of the court would have to await the reasons provided by them for that refusal.
If the consent of Shoalhaven City Council has been obtained and the lodgement of the subdivision plan at NSW Registry Services for registration as a deposited plan has occurred, then completion of the Cruise Contract and Eagle Contract can occur without further intervention by the court.

Appointment of trustees under s 66G of the Conveyancing Act

Although Ms Cruise under the Cruise Contract and Ms Eagle under the Eagle Contract each have an equitable interest in their respective properties, cl 17.1 of each of the Cruise Contract and the Eagle Contract only gives the plaintiffs a right to vacant possession of their respective properties on completion. Until such time, they do not have a property right of co-ownership "in possession". As a result, they do not fall within the definition of "co-ownership" in s 66F of the Conveyancing Act.
Accordingly, in my view they cannot obtain an order for the appointment of trustees under s 66G of the Conveyancing Act.

RELIEF

I consider that in all the circumstances, it is appropriate for the court to take a similar supervisory role in regard to the performance of the Cruise Contract and the Eagle Contract as was contemplated in Parkes, Klein and Mordue.
Accordingly, the orders I propose to make are as follows: 1. A declaration that the agreement contained in the contract for the sale and purchase of land dated 14 May 2020 between the first plaintiff and the defendants ought to be specifically performed, and to that end the defendants were and are bound to proceed with all due dispatch to obtain consent of the Shoalhaven City Council (Council) to a plan of subdivision and thereafter lodge the plan of subdivision at NSW Land Registry Services (LRS) for registration as a deposited plan. 2. A declaration that the agreement contained in the contract for the sale and purchase of land dated 2 October 2020 between the second plaintiff and the defendants ought to be specifically performed, and to that end the defendants were and are bound to proceed with all due dispatch to obtain consent of the Council to a plan of subdivision and thereafter lodge the plan of subdivision at LRS for registration as a deposited plan. 3. An order that the defendants specifically perform, with all due dispatch, an application to obtain the consent of the Council to a plan of subdivision as required by the first and second plaintiffs' contracts for the sale and purchase of land dated 14 May 2020 and 2 October 2020 respectively, by making an application to the Council pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) (EPAA) to modify the terms of the consent, and thereafter lodge the plan of subdivision at LRS for registration as a deposited plan. 4. In order to give effect to order 3 hereof: 1. The defendants shall lodge with the Council an application to the Council pursuant to s 4.55 of the EPAA to modify the terms of the consent (Application), and provide to the plaintiffs a copy of the Application, within twenty one (21) days. 2. The defendants shall do all things and sign all documents reasonably necessary to progress the Application. 3. The defendants shall provide to the plaintiffs a copy of the approval (Approval) or refusal of the Application from Council within seven (7) days of receipt of the Approval or refusal from Council. 4. The Defendants do all things and sign all documents necessary to satisfy each and every condition of the Approval in respect of each Lot in the subdivision. 5. Once the defendants notify the plaintiffs that the terms of the Approval have been satisfied, the defendants shall procure the execution of the original plan of subdivision by Council and their mortgagee and shall lodge that plan at LRS for registration as a deposited plan. 6. In the event of a refusal of the Application from Council, each party has liberty to apply on three (3) days' notice to a judge of this court for further orders. 1. An order that on the Approval being granted, the contract for the sale and purchase of land dated 14 May 2020 between the first plaintiff and the defendants ought to be specifically performed. 2. An order that on the Approval being granted, the contract for the sale and purchase of land dated 2 October 2020 between the second plaintiff and the defendants ought to be specifically performed. 3. The defendants pay the plaintiffs' costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2023

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Cases Cited (24)