Guilfoyle Developments Pty Ltd v Geoffrey Craig Frumar

The claim under clause 42 5Guilfoyle's claim is for an amount of damages under clause 42 which provides: "42 LIQUIDATED DAMAGES If completion of this contract does not take place by the completion date due to the default of only one party, it is an essential condition of this contract that the party in default shall pay to the other party upon completion, in addition to the other monies payable pursuant to this contract, the amount obtained by applying a simple interest formula of eight (8%) per cent per annum to the balance of the purchase price and calculated on a daily basis from but not including the completion date and including the date upon which this contract is actually completed." 6The claim is denied principally on the ground that default on the part of Guilfoyle contributed to delay in completion, so that it could not be said that the delay was due to the default of only one party (Mr Frumar) and, accordingly, Guilfoyle had no entitlement under clause 42. 7It is common ground that the completion date was 11 November 2011. Mr Frumar contended that Guilfoyle was in default in that by that date it had failed to provide the following items: (a) a credit or adjustment for an additional bank guarantee fee in the amount of $2,475; (b) installation of sound wiring to cornices ($2,176) and additional power points ($871.20) in accordance with clauses 57.2 and 58.5; (c) adequate provision for chandeliers in accordance with clause 57.7; (d) installation of a ducted vacuum cleaner ($10,708.50) in accordance with clause 57.15; (e) installation of a kitchen tidy ($511.50) in accordance with clause 58.4; (f) installation of mirrors in wardrobes ($983.97) in accordance with clause 58.4; and (g) provision of a certificate regarding acoustic treatment in accordance with clause 60. 8The submissions left uncertain whether or not Mr Frumar claimed default for Guilfoyle's failure to provide a C-Bus system ($18,150) under clause 58.5, and to install a Star Serve system ($6,050). For the avoidance of doubt, it is appropriate to proceed on the basis that an allegation of default is made in respect of each item. In any event, Mr Frumar claims damages or adjustment for breach of the contract arising out of these alleged failures. 9Mr Frumar submitted that Guilfoyle's entitlement to liquidated damages under clause 42 is not co-extensive with its right to obtain specific performance, but turns on the proper construction of the provision. Accordingly it was put that for Guilfoyle to succeed it must establish either that it was not in default at the time it required Mr Frumar to complete, or if it was in default, that default did not "even in the most minor sense" contribute to the delay in completion. It was put that as Guilfoyle was, as a matter of fact, in default, it was not open to find that completion did not take place solely because of Mr Frumar's default. In these circumstances, it was argued that Guilfoyle had no claim under clause 42. 10On the other hand, Guilfoyle relied upon the finding stated in the judgment: "86 The relevant principle was explained by Barwick CJ in the often cited passage in Mehmet v Bensen [1965] HCA 18; (1965) 113 CLR 295 (pp 307-308): "The question as to whether or not the plaintiff has been and is ready and willing to perform the contract is one of substance not to be resolved in any technical or narrow sense. It is important to bear in mind what is the substantial thing for which the parties contract and what on the part of the plaintiff in a suit for specific performance are his essential obligations. Here the substantial thing for which the defendant bargained was the payment of the price: and, unless time be and remain of the essence, he obtains what he bargained for if by the decree he obtains his price with such ancillary orders as recompense him for the delay in its receipt. To order specific performance in this case would not involve the court in dispensing with anything for which the vendor essentially contracted." 87 In order to succeed a plaintiff is not required to show that in the past he has strictly and literally complied with all his obligations under the contract, or that he is ready and willing to perform strictly and literally his obligations in the future (Meagher, Gummow and Lehane: Equity Doctrines and Remedies, 4th Ed (2002), par 20-120). 88 In my opinion the evidence establishes that Guilfoyle was ready and willing to provide the substance for which Mr Frumar had bargained, and to perform the contract in its essential terms. Mr Frumar's complaint that there remained a number of items of an estimated total value of less than $150,000 under a contract in which the purchase price was $3,300,000 is no bar to an order in the circumstances of this case." 11It was submitted that a similar approach should be taken in the application of clause 42, and for its claim to succeed it was not necessary for Guilfoyle to show that it had strictly complied with all its contractual obligations. It was also put that there was no default by Guilfoyle in respect of items yet to be performed where in support of its claim for relief by way of specific performance it had been found to be ready and willing to perform the contract on its part. 12Resolution of the issue as to Guilfoyle's default ultimately turns on the proper construction of clause 42 in the context of the contract as a whole. In Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 Bathurst CJ (Macfarlan, Meagher JJA agreeing) said: "52 The principles underlying the construction of written contracts are well established and it is not necessary to deal with them at length. A contract is to be construed by reference to what a reasonable person would understand by the language in which the parties have expressed their agreement having regard to the context in which the words appear and the purpose and object of the transaction: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]; Toll (FGCT) Pty Limited v Alphafarm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 at [40]; International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3; (2008) 234 CLR 151 at [53]. At least in the case of ambiguity, resort can be had to the surrounding circumstances known to the parties in interpreting the particular provision: Codelfa Construction Pty Limited v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 at 352; Western Export Services Inc v Jireh International Pty Limited [2011] HCA 45; (2011) 282 ALR 604." 13In Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, pp 109-110 Gibbs J said: "It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, "even though the construction adopted is not the most obvious, or the most grammatically accurate", to use the words from earlier authority cited in Locke v. Dunlop, which, although spoken in relation to a will, are applicable to the construction of written instruments generally; see also Bottomley's Case. Further, it will be permissible to depart from the ordinary meaning of the words of one provision so far as is necessary to avoid an inconsistency between that provision and the rest of the instrument. Finally, the statement of Lord Wright in Hillas & Co. Ltd. v. Arcos Ltd., that the court should construe commercial contracts 'fairly and broadly, without being too astute or subtle in finding defects', should not, in my opinion, be understood as limited to documents drawn by businessmen for themselves and without legal assistance (cf. Upper Hunter County District Council v. Australian Chilling and Freezing Co. Ltd.)." 14Guilfoyle's alleged failure to provide the building items are claimed by Mr Frumar to be breaches of particular sub-clauses of clause 57 which deals with variations to property configuration, and/or clause 58 which deals with the purchaser's input to design and architectural matters. The nature of performance required by the particular term, and what default will amount to a breach of it, will depend upon its proper construction. Guidance to the approach to be taken may be derived from Mehmet v Bensen [1965] HCA 18; (1965) 113 CLR 295 pp 307-308, and from the following passage from the judgment of Glass JA in Lohar Corporation Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177, p 9186: "... it is in my view a mistake to believe that when time for the completion of a contract for the sale and purchase of land becomes essential, nothing less than strict and literal performance of every obligation is acceptable. It matters not whether the court is judging the failure of the defendant to perform or the failure of the plaintiff to be ready and willing to perform. The answer to both questions must depend on all the circumstances practically viewed and upon the nature of the obligation in question. The tenor of some contractual duties is such that exact performance is required to avoid default. With others, substantial compliance is sufficient. (Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 at 642). There is no universal rule that conveyancing performance is to be 'measured out by coffee spoons'." 15I turn first to the issue of the bank guarantee fee in the amount of $2,475. Provision for allowance of a credit for this item arose as a proposed amendment to clause 31.2.12.1 of the contract, and was the subject of correspondence between 29 June and 1 July 2010 as referred to in pars 18-21 of the judgment. Clause 31.2.12 provided: "31.2.12 If and when the contract is completed then on completion the parties will share the acquisition and funding costs of the bank guarantee as follows: 31.2.12.1 the first 6 months costs to be paid by the vendor; and 31.2.12.2 all further costs to be paid equally by the parties; 31.2.12.3 any necessary adjustment of such costs is to be made on completion." 16In his letter of 29 June 2010 Mr Watson proposed that clause 31.2.12.1 be amended: "... by deleting the number '6' and replacing with the number '12' and that the vendor agrees to pay an additional sum of $2,475 towards the cost of funding the Bank Guarantee Deposit Bond should that be required." 17I have found that Mr Frumar was bound by the terms of the contract dated 20 November 2009 which contained no obligation requiring Guilfoyle to allow the guarantee fee in the amount presently alleged. If any such obligation arose at sometime prior to completion in July 2012 it was outside the contract, and irrelevant to the application of clause 42. In my opinion, any failure to account for this fee was not a default within the meaning of the clause. 18Furthermore, clause 31.2.12 envisages adjustment on completion. Assuming the proposed amendment eventually had contractual effect, no obligation for adjustment or credit would arise until completion. Accordingly, it is difficult to see how any relevant default could have caused a delay in completion. The allegation of default on this ground is rejected. 19I turn now to the claims of default in respect of the failure to provide sound wiring, additional power points, chandeliers, a ducted vacuum cleaner, a kitchen tidy, and mirrors in wardrobes. 20The relevant contractual provisions are the following: "32.1 The Vendor must cause the Building of which the property sold forms part to be constructed in a proper and workmanlike manner and substantially in accordance with the Council approved plans and specifications and the Council's Development Consent and clauses 57 and 58 ... ... 43 RECTIFICATION OF DEFECTS .... 43.2 If there are any matters or things in the property or common areas which require rectification completion or repair, or are not of new standard and of good quality or not substantially in accordance with the Council approved plans and specifications, the Council's Development Consent, and its Construction Certificate and the Schedule of Finishes and clauses 57 and 58, then the Purchaser may notify the Vendor in writing of such matters (the 'pre-settlement defects list') and, providing same is/are a legitimate defect/s, the Vendor shall repair, replace, complete and rectify or make good in a property and workmanlike manner any such matter or thing so notified by the Purchaser within 14 days of receipt of the pre-settlement defects list. ... 43.4 The purchaser must serve the pre-settlement defects list on the vendor within 7 days of service on the purchaser of the notice under clause 30.1(a), and the purchaser has no right for any defect not so notified within this period to be rectified prior to completion. ... 47 DEFECTS WARRANTY 47.1 Any defects of faults due to faulty materials or workmanship which may appear in the property and/or common areas and notice of which is served on the vendor immediately prior to expiration of twelve (12) calendar months following completion or occupation of the property by the Purchasers (whichever is the earlier) shall be amended and made good by the Vendor at his own cost within 30 days after the expiration of such period of twelve (12) calendar months period. Clause 47.1 shall not apply to nor include normal maintenance, normal wear and tear, minor shrinkage and minor settlement cracks. ... 57 VARIATIONS TO PROPERTY CONFIGURATION The vendor agrees, at its own cost and at the request of the purchaser to make the following additions, or alterations, to the proposed configuration to the property: ... 57.2 provision of wiring to cornices and/or pelmets in the living/dining/ study areas and to the bedrooms for the purchasers to install concealed sound speakers. The locations to be agreed between the parties. ... 57.7 adequate provision for the installation of four chandeliers by the purchasers, three within the property and one to the lift lobby adjacent to the entry to the lot. ... 57.15 installation of a ducted vacuum system with appropriate outlets. ... 57.17 Should the purchaser request prior to completion reasonable access to the property for the purpose of installation of the purchaser's fitting, such as chandeliers, washing machine etc, then the vendor will use it [sic] best endeavours to provide and facilitate such access, providing that doing so would not cause under [sic] interference with the construction and/or finishing of the property and the building as a whole. 58 PURCHASERS' INPUT TO DESIGN AND ARCHITECTURAL MATTERS At its own cost and expense, the vendor agrees at the purchasers' request to allow the purchasers to provide directions and input to the vendor's architect and design in relation to the following matters and to comply herewith: ... 58.4 design of the cupboards, drawers, robes including mirrors, linen presses, pantry and storage facility in the bedrooms, bathrooms, kitchen with installation of a kitchen tidy as a sliding drawer with retractable lid in the cupboard beneath the double sink and laundry. 58.5 location of all switches, power points, four gas bayonets, hot water system, telephone points, television points, the C-Bus system and broadband cable." 21I have found (the judgment par 76) that the contract of 20 November 2009 specifically incorporated all that Mr Frumar then wanted to be included in the unit. It was the product of detailed negotiation. Its provisions were carefully worded in language which should be given its natural and ordinary meaning. The language of the contractual provisions is unambiguous and, self evidently, all are harmonious one with another. Guilfoyle is required to construct the building in a proper and workmanlike manner and, relevantly, substantially in accordance with clauses 57 and 58 (clause 32.1). Clause 43 provides a scheme for the rectification of defects. It envisages the requirement for rectification, completion, or repair of items not substantially in accordance with clauses 57 and 58. Clauses 43.2 and 43.4 afforded Mr Frumar the opportunity of requiring Guilfoyle, prior to completion, to complete or rectify matters of which notification had been given in a pre-settlement defects list. Mr Frumar had no right for any defect not so notified within the prescribed period to be rectified prior to completion. Under clause 47 Guilfoyle may be required to remedy defects, after completion, upon notification as prescribed. 22Analysis demonstrates a clear distinction between the scope of Guilfoyle's obligations under clause 57, and of those under clause 58. Clause 57 specifies comprehensively the additions or alterations to be made to the proposed configuration of the property at Guilfoyle's cost. Each sub-clause identifies items to be provided or installed by Guilfoyle. Clause 58 specifies the matters in respect of which Guilfoyle allows Mr Frumar to provide directions and input to its architect and designer with which it will comply. Thus the scope of Guilfoyle's obligations under clause 58 is, in the course of construction of the building, to comply with such directions and input as to configuration, design, or location as may be given. In my opinion, unlike clause 57, clause 58 is not a provision under which Guilfoyle has agreed to make any addition or alteration to the property at its cost, or at all. 23Furthermore, upon their proper construction, in my opinion clause 57 (except clause 57.12) and clause 58 were not, and were not intended by the parties to be, essential terms requiring performance of each and every item prior to the date for completion. It follows, in my opinion, that a failure by Guilfoyle to perform or complete a matter within clause 57 (except clause 57.12) and clause 58, prior to completion, would not amount to a breach or default under clause 42. This conclusion is consistent with the operation of clauses 43 and 47 which allow for performance after the completion date. In any event, the tenor of these contractual duties is not such that exact performance is required to avoid default (Lohar, p 9186). What is required is substantial performance. 24Had the parties intended otherwise, it is reasonable to assume that appropriate language would have been used which required performance by the completion date. An example is clause 57.12, which, in terms different to the terms of the other subclauses of clause 57 and of clause 58, provides: "as an essential term of this contract, the vendor will prior to completion, complete construction of all common property including the front entrance, the foyer, the lift and lift lobby, the car park area and the landscaping to the exterior of the building including the planter box outside the loggia to the lot." 25That in this context there is no similar provision to clause 57.12 strongly suggests that the parties never intended that Guilfoyle would be in default if, prior to the completion date, it had not completed performance of the other matters under clauses 57 and 58, and, in particular, the matters of which Mr Frumar presently complains. 26Accordingly, the allegations of default in respect of wiring, power points, chandeliers, the vacuum cleaner, the kitchen tidy, and mirrors are rejected. 27The next issue is the alleged failure to provide a certificate regarding acoustic treatment in accordance with clause 60, which provides: "60 INSULATION TO FLOORS AND CEILINGS Attached and marked 'C' is a consultant's drawing for recommended sound absorption for floors and ceilings. The vendor will ensure that the floors and ceilings to the unit and adjoining units will be treated in the recommended manner, and the vendor will prior to completion provide to the purchaser a certificate from an acoustic consultant or engineer conferring that the flooring sound proofing has been carried out in accordance with the specifications contained in annexure 'C' ..." 28In my opinion the complaint is utterly baseless. It is negated by the evidence of the certificates of 18 October 2011 (Ex A, pp 526, 565, 609) and 11 November 2011 (Ex A, p 614) which confirm that the timber flooring had been installed in accordance with annexure C to the contract. Clause 60 required provision prior to completion of a certificate that the flooring complied with the specifications contained in annexure C. The certificates met this requirement. There was no requirement for certification in respect of the ceilings, which seems to be the gravamen of the complaint. The complaint that it was only the latest certificate which was provided by an acoustic consultant or engineer is one which I consider to be of no moment. I find there was no default by Guilfoyle on this ground. Even assuming default, there was no evidentiary basis upon which it contributed to delay in completion. A lasting impression is that this claim is of the category which led Glass JA (Lohar, p 9186) to observe that there is no rule that conveyancing performance is to be measured out with coffee spoons in the same way that TS Eliot's doleful J. Alfred Prufrock measured out his life. 29The next issue is the alleged failure to provide a C-Bus system. 30Mr Frumar contends, that upon its proper construction, clause 58.5 requires Guilfoyle to provide a C-Bus system in the property. I disagree. The sub-clause requires compliance with directions to the architect and designer for the location of the item. It does not require Guilfoyle, at its expense, to provide it. It was not specified under clause 57. No other contractual obligation to like effect was identified or relied upon. In my opinion, this allegation of default is without foundation, and must be rejected. 31This conclusion is consistent with the correspondence which records the negotiations for amendments to the contract. For example, in the email of 22 July 2010 (par xxii) Mr Frumar was informed that a C-Bus system was not proposed for the building, and in his email of 3 August 2010 to Guilfoyle, Mr Frumar suggested various functions for inclusion in the specification for the system. I have considered the reference to a C-Bus system in the architectural specification (Ex 6). It contains clause 3.4 which identifies the components to be included in the under floor heating system to all bathrooms, one of which is described as "Connection to C-Bus system via a C-Bus Auxiliary with timer function". In my opinion this document provides no support for the interpretation of clause 58.5 that Guilfoyle was under an obligation, express or implied, to provide the system at its expense. 32The remaining issue is the alleged failure to provide a Star Serve system. 33Guilfoyle contended that it was not required to do so by any provision under the contract. On the other hand, Mr Frumar submitted that the obligation arose from clause 32.1 which required substantial compliance with plans and specifications including the architectural specification. 34This specification (no. 16329) related to the supply, installation, commissioning and maintenance of electrical services for the property. It included: "3.5 TV AND TELEPHONE CABLING DISTRIBUTION SYSTEM General Provide a Clipsal Star Serve distribution unit in each apartment to allow termination and distribution of telephone and TV cabling. Distribution units shall be installed as shown on the drawing." 35In my opinion, performance under clause 32.1 required compliance with clause 3.5 of the specification and, thus, the provision of the Star Serve distribution unit referred to. However, for reasons given in respect of the other building items, the failure to provide the item prior to completion was not a default within the meaning of clause 42. 36Accordingly, I reject Mr Frumar's submissions to the effect that Guilfoyle's claim under clause 42 required it to demonstrate it had complied strictly with the various contractual provisions under consideration. I find that there was no default by Guilfoyle which caused completion of the contract not to take place by the completion date, namely 11 November 2011. In addition to these reasons, in my opinion the findings that Guilfoyle was ready and willing to perform the contract on its part and, in the circumstances, was entitled to an order for specific performance entitles it to claim liquidated damages under clause 42. 37The quantum of damages is to be calculated with regard to the balance of the purchase price. Guilfoyle submitted that the amount is $3,300,000 being the contract price actually paid on completion, subject to adjustment. Mr Frumar submitted that the amount is $2,970,000 being the amount recorded as the balance of the purchase price on page one of the contract. 38Under clause 2.6 of the contract, Guilfoyle accepted a bank guarantee dated 9 December 2009 in its favour for the deposit in the amount of $330,000. 39The guarantee was provided by St George Bank at the request of Mr Frumar and the late Mrs Frumar, as customers. The sum was guaranteed to be held at Guilfoyle's disposal until Guilfoyle no longer required it to be so held, or required it to be paid to itself. The practical effect was that, in lieu of payment of the amount of the deposit at the date of the contract, provision was made for the amount to be held for Guilfoyle at its disposal. 40Guilfoyle submitted that as no deposit had been paid, the balance of the purchase price under clause 42 was the total price of $3,300,000. It was put that this calculation was in accordance with clause 16.7 which required payment on completion of the purchase price less any deposit paid, and any other amount otherwise payable. In my opinion, the submission should not be accepted. In lieu of a deposit, Guilfoyle accepted the guarantee under which it would receive the equivalent amount upon completion when it became entitled to require payment from the bank. It follows, in my opinion, that the balance of purchase price for the purpose of clause 42 is an amount payable by Mr Frumar which takes into account the amount available to Guilfoyle under the guarantee. 41Thus I accept Mr Frumar's submissions that liquidated damages under clause 42 must be calculated on the sum of $2,970,000, and that the relevant period is from 12 November 2011 until 12 July 2012, the actual date of completion. On this basis, the amount is calculated for a period of 244 days at 8 per cent per annum, arriving at the total sum of $158,833.97. 42I propose to order judgment for Guilfoyle in the sum of $158,833.97.

The claim for interest 43Although the claim is in the alternative to the claim for liquidated damages it is appropriate that it be determined. The claim for interest is for an amount of $170,440.42 for the period from commencement of proceedings on 26 November 2011 to completion of the conveyance on 12 July 2012 calculated on the purchase price in the sum of $3,300,000. 44Section 100(1) of the Act provides: "100 Interest up to judgment (1) In proceedings for the recovery of money (including any debt or damages or the value of any goods), the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit: (a) on the whole or any part of the money, and (b) for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect." 45The contract in this case was a typical executory contract for the sale of land which required the execution of a conveyance or transfer. In Sudbrook Trading Ltd v Eggleton [1983] 1 AC 444, p 478, Lord Diplock said: "True it is that the agreement for the sale of land remains executory until transfer of title to the land and payment of the purchase price; but if this is the sense in which the agreement is said not to be complete it is only executory contracts that do require enforcement by the courts; and such enforcement may either take the form of requiring a party to perform his primary obligation to the other party under it (specific performance) or, if he has failed to perform a primary obligation, of requiring him to perform the secondary obligation, that arises only upon such failure, to pay monetary compensation (damages) to the other party for the resulting loss that he has sustained." (see also Meagher, Heydon, Leeming "Meagher, Gummow, Lehane: Equity Doctrines and Remedies" 4th Ed, pars 20-010, 20-015). 46In McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457, pp 475-476, in stating the principles as to the rights and obligations of vendors and purchasers, Dixon J adopted the following passage from the judgment of Salmond J in Ruddenklau v Charlesworth [1925] NZLR 161, pp 164-165: "Sir John Salmond has stated the principles determining this conclusion: - "As a general rule, on the failure or refusal of a purchaser to complete an executory contract for the purchase of land the vendor is not entitled to sue for the purchase money as a debt. He is entitled merely to sue for specific performance or for damages for the loss of his bargain. It is only when the contract has been completed by the execution and acceptance of a conveyance that unpaid purchase money may become a debt and can be recovered accordingly. This general rule is sufficiently illustrated and established by the case of Laird v. Pim (1841) [1841] EngR 237; 7 M. & W. 474; 151 E.R. 852. The sale of land is in this respect similar to the sale of goods. In the case of goods sold and delivered, and of goods bargained and sold, the property in each case having passed to the buyer, the seller's remedy is to sue for the price. But if under any executory contract the buyer wrongfully refuses to accept the goods the seller's only remedy is an action for damages. The general rule, however, that in an executory contract for the sale of land the vendor cannot sue for the price is excluded whenever a contrary intention is shown by the express terms of the contract." 47Lahoud v Lahoud [2011] NSWCA 405 concerned a claim for pre-judgment interest under s 100(1) on an amount ordered to be repaid in proceedings for specific performance of an agreement for an audit. With regard to the scope of s 100(1) Handley AJA (Giles JA, Sackville AJA agreeing) said: "37 The expression "proceedings for the recovery of money" in s 100 or its equivalent have been held to include proceedings for a salvage award: The Aldora [1975] QB 748; for compensation for a compulsory acquisition: Crisp & Gunn Co-Operative Ltd v Hobart Corporation [1963] HCA 55; 110 CLR 538, for a declaration of entitlement to a share of the proceeds of a completed sale of land: Bloch v Bloch [1981] HCA 56; 180 CLR 390; and for enforcing a statutory indemnity: Victorian Workcover Authority v Esso Australia Ltd [2001] HCA 53; 207 CLR 520. 38 In the Workcover case the plurality said at pp 538-9 [41]-[42]: "... the phrase should be understood as a composite expression. It embraces any proceeding in which a claim for money is made, in contrast to declaratory relief and claims for specific forms of relief such as mandatory injunctions, charging orders and orders for specific performance. The circumstance that relief of that description is sought in addition to a money claim does not deny the application of [the section] in respect of that money claim ... Some of the cases in which interest might be awarded at general law and independently of statute may not answer the description of a proceeding for the recovery of debt or damages. An account of profits or order for the payment of equitable compensation may be examples. However [the section] preserves the operation of the general law in such cases ... [this] would suggest that, in a case where an order is made under [the section] equity, in its auxiliary jurisdiction, may not supplement the statute by providing for compound interest]." 39 In my opinion proceedings by vendors for specific performance of a contract for the sale of land or other property are not proceedings for the recovery of money. In the absence of express contractual provisions equity would generally only order interest on the balance of purchase money if the purchaser had gone into possession prior to completion or the vendor had transferred title without receiving the balance of purchase money. The vendor could also sue for the purchase money or an instalment thereof it was payable on a fixed date independently of completion: McDonald v Dennys Lascelles Ltd [1933] HCA 25; 48 CLR 457, 475-6 per Dixon J. 40 Where the vendor could sue at law for the purchase price or part thereof the proceedings would be for the recovery of money and pre-judgment interest could be awarded under s 100. In other cases where the vendor must seek specific performance the proceedings are not for the recovery of money although, if completion is enforced, the vendor will receive the purchase price in return for a conveyance or transfer to the purchaser." 48The relief which Guilfoyle chose to pursue in these proceedings was for a declaration and order for specific performance of a contract which required payment of the purchase price upon completion, and which involved the execution by Guilfoyle of the conveyance or transfer. Mr Frumar incurred no liability to pay the purchase price until completion of the contract which took place on 12 July 2012. No money claim was made against him in addition to the claim for specific performance. 49With regard to the authorities, these proceedings are not proceedings for the recovery of money within s 100(1). Accordingly, Guilfoyle's claim for interest must be rejected. 50Guilfoyle also submitted that the opinion of Handley AJA in Lahoud (par 39) that proceedings by vendors for specific performance for a contract for the sale of land are not proceedings for the recovery of money was in conflict with the following statement from the judgment of Basten and Bell JJA (Beazley JA agreeing) in Dome Resources NL v Silver [2008] NSWCA 322; (2008) 72 NSWLR 693, par 78: "78 Properly understood, s 100 does not delimit the power which it confers to include interest in the amount for which judgment is given by reference to whether the cause of action was brought under the general law, equity, or statute. Just as it was designed to expand the limited circumstances in which interest could be awarded on a judgment for payment of money under the general law, so it expanded the circumstances in which interest was payable at equity. So long as the judgment included an order for the payment of money, it was appropriate for his Honour to include an amount by way of interest. The appeal with respect to so much of the order as included interest should be dismissed." 51I find no inconsistency. Guilfoyle's submissions appear to have been put without regard to their Honours' statement that in order to attract the application of s 100 the judgment should include an order for the payment of money. The principles analysed and applied in Lahoud were to the same effect.

The Star Serve system claim 52I have found that Guilfoyle's failure to provide a Star Serve system was in breach of the contract. Mr Frumar is entitled to an award of damages for this breach. The loss has been quantified in the amount of $6,050, a figure which, on the unchallenged evidence of the Cohen report of 1 March 2012, I accept. Accordingly, I find Guilfoyle liable to Mr Frumar in the amount of $6,050.

Conclusion 53I have found Guilfoyle is entitled to an award of liquidated damages in the amount of $158,833.97. I have found Mr Frumar is entitled to damages for breach in respect of the Star Serve system in the amount of $6,050. The parties should have the opportunity to agree on the terms of the final orders to be made to give effect to these findings. 54It was accepted that Mr Frumar be ordered to pay Guilfoyle's costs of the proceedings on the ordinary basis. The question arises whether the costs of that part of the proceedings which concerned issues outstanding after delivery of the judgment on 1 August 2012 and which involved a hearing on 30 August 2012 and further written submissions should be included as part of the costs of the whole proceedings, or treated separately. In the event that there is no agreement, the parties should have the opportunity to make submissions as to the appropriate order to be made. 55I direct the parties to apply to my associate by 4pm 6 December 2012 for the re-listing of the matter when final orders may be made.

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: 30 November 2012