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[2026] NSWSC 619
Supreme Court of NSW
2026-06-01
Parker J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hanna v KC [2026] NSWSC 619
Hearing dates: 29 May 2026
Date of orders: 1 June 2026
Decision date: 01 June 2026
Jurisdiction: Equity - Applications List
Before: Parker J
Decision: See [14]
Catchwords: CIVIL PROCEDURE — Default judgment — Specific performance of contract for sale of land — Defendant vendor failing to enter appearance — Whether plaintiff entitled to specific performance on admitted pleadings — Discretion to grant equitable relief
Legislation Cited: Uniform Civil Procedure Rules 2005 rr 16.3(1), 16.10
Cases Cited: Dandaloo Pty Ltd v Iali [2017] NSWSC 1738
Hutchinson v AD Securities America LLC [2021] NSWSC 1573
Category: Principal judgment
Parties: Statement of Claim filed 2 July 2025
Duraid Hanna (Plaintiff)
Sarita KC (Defendant)
Notice of Motion filed 12 May 2026
Duraid Hanna (Applicant)
Sarita KC (Respondent)
Representation: Counsel:
L Byrne (Plaintiff/Applicant)
Solicitors:
Khalil Family Lawyers (Plaintiff/Applicant)
File Number(s): 2025/251585
Publication restriction: Nil
This is a specific performance suit brought by the purchaser against the vendor. The subject land is a home unit at Fairfield in Sydney. The contract price is $390,000.
The proceedings were commenced by the purchaser as plaintiff against the vendor as defendant in July last year. The vendor did not appear. In January, a notice of motion was filed for the purchaser for “default judgment” in the form of an order for specific performance. The notice of motion was later amended pursuant to directions by Williams J which provided for it to be served on the mortgagee and listed for directions or final hearing as appropriate last Friday.
At the hearing, the purchaser was represented by counsel. The mortgagee appeared, but neither consented to nor opposed the relief sought. There was no appearance for the vendor.
Whatever the plaintiff’s claims for relief against a defendant in default, the court may, on application by the plaintiff, give such judgment against the defendant as the plaintiff appears to be entitled to on his or her statement of claim.
Decisions of this Court establish that an order for specific performance may be made under this rule: Dandaloo Pty Ltd v Iali [2017] NSWSC 1738 at [37] (Darke J); Hutchinson v AD Securities America LLC [2021] NSWSC 1573 at [13] (Ward CJ in Eq). The decisions emphasise, however, that doing so is a discretionary matter. In Hutchinson, her Honour gave judgment for damages instead.
Procedures for obtaining default judgment in debt are a long-standing feature of the Rules. Typically, they permit a plaintiff, if the defendant defaults on entry of an appearance, to obtain judgment for the amount of the debt claimed on the footing that, by defaulting, the defendant has admitted the truth of the allegations pleaded. This allows the plaintiff to obtain judgment for the amount claimed without the necessity to prove the truth of the facts alleged in the statement of claim, and to obtain judgment for the relief which follows, merely upon proof of default and that the debt is still owing: UCPR r 16.3(1).
The evident purpose of r 16.10 is to make this procedure available in analogous circumstances to other causes of action. The lack of a specified procedure in terms of the evidence required, and the existence of a residual discretion, reflects the variability of circumstances in applying the rule across a broad range of causes of action, both legal and equitable.
In the present case, the purchaser’s statement of claim pleads: entry into the contract by the parties; agreement by the parties on a settlement date of 15 April last year; failure by the vendor to settle on that date; further correspondence from the purchaser’s solicitor unsuccessfully attempting to arrange settlement; and issue of a notice to complete on 13 May last year. Subject to one matter to which I will return, the facts pleaded, which can be taken as a result of default to have been admitted, create a prima facie entitlement to specific performance of the contract. There is no need for the purchaser to prove affirmatively that he is ready, willing and able to complete: Dandaloo at [42].
On the application, affidavit evidence was read from the plaintiff deposing to service of the statement of claim, the original notice of motion, and the amended notice of motion on the vendor. The vendor’s failure to enter an appearance is established by the Court record, as is her failure to attend the hearing last Friday.
The one potential qualification which I should mention is that the statement of claim does not plead the term of the contract which specified the settlement date. However, the contract itself is in evidence. It provided that settlement was to occur 42 days after entry into the contract (which is pleaded as having occurred on 9 March last year). This in fact post-dates the agreed first date for settlement pleaded in the statement of claim by a few days. But I do not think that it matters that the contractual date for settlement had not been reached if, as the statement of claim pleads, the parties had agreed on an earlier date. In any event, by the time of the issue of the notice of completion on 12 May, the contractual date for completion had passed.
At the hearing, counsel for the plaintiff sought to read, among other affidavits, the affidavit verifying the statement of claim. I do not think that this necessarily helps the purchaser on the current application. All the affidavit verifying the statement of claim deposes to is a belief on the purchaser’s part that the allegations in the statement of claim are true. In any event, as I have already explained, the vendor’s default allows the Court to proceed on the basis that the vendor has admitted the truth of the plaintiff's allegations; there is no need to prove them independently.
The circumstances suggest that the reason why the vendor has not completed the contract but has not defended the proceedings either may be that she is unable to discharge the mortgage on the property. I was told from the Bar Table that there had been some negotiations between the parties but the vendor is currently short of the required funds. There must therefore be some risk that the vendor will, through no fault of her own, be unable to comply with the order for specific performance and it will ultimately prove futile.
But I do not see this as substantial enough reason to refuse an order for specific performance to the purchaser. Non-compliance is not certain. In these circumstances, I think it is better to make the order for specific performance and see whether it results in the contract being completed. If it does not, it will always be open to the purchaser to apply to have the order discharged, terminate the contract, and sue for loss of bargain damages.
Nor do I think that there is any advantage in, as was sought, making some directions for signature of the necessary documents by the Registrar in the event of non-compliance. It seems to me that the circumstances are so variable that it would be better to wait and see. The purchaser will be entitled to apply for any directions and other consequential orders necessary to give effect to the order for specific performance.
The formal grant for liberty to apply is probably not, strictly speaking, necessary but I will reserve such liberty nonetheless. I will also reserve liberty to the purchaser to apply for an order for assessment of damages resulting from the past delay in compliance.
As to costs, the purchaser has succeeded in his motion for default judgment and will receive an order for costs in his favour for that motion. I was asked to make an order that the vendor pay the purchaser’s costs of the whole of the proceedings. However, what I have said about damages demonstrates that the proceedings are not necessarily finished. The costs of the proceedings should be determined only when all claims for relief in them have been the subject of final orders. If the contract is completed and the plaintiff decides not to pursue a claim for damages for delay, an application can be made at that point.
The orders of the Court on the Plaintiff’s notice of motion filed 28 January 2026 are:
Order that the contract dated 9 March 2025 between the Defendant as vendor and the Plaintiff as purchaser for the sale of the property in Folio Identifier 36/SP97986 at Fairfield in the State of New South Wales be specifically performed and carried into execution under the supervision of the Court.
Order that the Defendant pay the Plaintiff’s cost of the motion.
Reserve to the Plaintiff liberty to apply in the event of non-compliance by the Defendant with the order for specific performance; or otherwise with respect to any other claim the Plaintiff may have for breach of the said contract; or with respect to costs.
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Hanna
KC