LVL Transport Pty Ltd v Fuller Road West Pty Ltd as Trustee for Fuller Road Trust; Karanfilovski Investments Pty Ltd and Anor v Fuller Road West Pty Ltd as Trustee for Fuller Road Trust [2025] VCC 419
For the reasons given, I am satisfied that the plaintiffs are now ready, willing and able to complete their respective purchases. Lest I be wrong, the orders in these proceedings should include the additional provision facilitating rescission or cancellation in the event of non-performance as proposed by Windeyer J.
A further complication is that in at least one of the purchases, namely the one by LVL Transport Pty Ltd, the plaintiff contemplated exercising a right of nomination pursuant to the terms of the relevant contract. Any decree for specific performance should cater for this possibility also.
[2]
The defendant contended that even were the other matters required for a decree of specific performance made out, none should be made because it was said the plaintiffs had been guilty of laches.
The allegation seems to focus upon the delay in commencement of the 2024 proceeding brought by Karanfilovski Investments Pty Ltd and SMX Equities Pty Ltd and the cooperation (as it was alleged) of all plaintiffs in aborting a trial date fixed in April of 2024, leaving the matter adjourned over almost 12 months until it came on for hearing before me on 17 March this year.
In Orr v Ford[1989] HCA 4; , 338, Deane J, with whom Mason CJ concurred, said:
"the doctrine of laches comprises those rules which define the circumstances in which equity will, without need to resort to the rules governing other more particular defences and in the absence of applicable statutory provisions, refuse relief by reason of standing by or lapse of time before action." ((1989) [1989] HCA 4; 167 CLR 316, 339)
[4]
Mr Palmer cited the judgment of Meek J in Al Dakhili v Al Kheurallah[2023] NSWSC 47. At [934] his Honour said "It is clear that the bare fact of delay is not enough". At [936], in referring to Dr Spry's work The Principles of Equitable Remedies (9th ed, Lawbook Co, 2014), for the defence to be successful:
[5]
"First, there must be unreasonable delay in the commencement or prosecution of proceedings for specific performance. Secondly, in all the circumstances the consequences of the delay must render the grant of relief unjust". ([2023] NSWSC 47 [936])
[6]
In the present case, assuming without deciding that in the circumstances the plaintiffs and each of them is to be regarded as having engaged in unreasonable delay, there is an absence of evidence of prejudice or disadvantage to the defendant. The evidence showed that the defendant had moved to develop Lots 1-6 on the plan of subdivision for leasing to prospective tenants. There was no evidence as to any plans which may have been formulated and then thwarted by the pendency of these proceedings as to any other lot, or in particular as to any of the subject allotments. Responding to a query which I raised with him during closing submissions, Mr Palmer, on behalf of the defendant, conceded that:
[7]
"check did not directly state that the reason the defendant had not done anything on the lots the subject of the proceeding was because of the proceeding."
[8]
Mr Doyle did give evidence as to what the defendant had decided to do with the lots ... "to develop the subdivision with built form so build warehouses and lease them and hold on to them". (Email, 3 April 2025)
Apart from a general determination to build and hold the allotments from No 7 upwards for lease, there was no indication as to when that might occur; no indication, for instance, that plans had been put in hand for all of those units from No 7 upwards except the subject units. Had the present contracts of sale been completed following registration of the plan, the purchase price would have alleviated and reduced part of the holding costs. All in all, I conclude that no prejudice has been established for the defendant which would render it unjust to grant the decrees of specific performance sought by the plaintiffs.
Given that I have determined it is appropriate to grant the decrees of specific performance sought by the plaintiffs, the issue of damages under s38 of the Supreme Court Act1986 does not arise.
[11]
I will direct that within 14 days the parties bring in short minutes to give effect to these reasons.
[12]
I have heard no submissions on the question of costs and so I will reserve them.
[13]
I certify that these 48 pages are a true copy of the judgment of his Honour Judge Macnamara delivered on 9 April 2025.
XL Insurance Co SE v BNY Trust Company of Australia Limited[2019] NSWCA 215;
As noted above, Mr Palmer's contention was that since the statute had no application to contracts such as these, the subclause was "otiose": viz, in effect, null. It is well established by authorities to which I will turn in due course, and which were relied upon by Mr Stuckey and Mr Brimfield in support of their contention, that a construction which seeks to give effect to every provision in a written contract and operate it as a harmonious whole is to be preferred to any other construction.
To put it another way, the Court ought to be slow to treat a provision in a comprehensive, professionally-drawn written contract as simply ineffective. The most obvious way to render this subclause effective would be to regard as implicit, or to add as a matter of construction (as having been mistakenly omitted), the words "as if this contract were a residential off-the-plan contract within the meaning of the SLA". In the case of obvious mistakes, words may be added as part of the construction process: Fitzgerald v Masters[1956] HCA 53; (1956) 95 CLR 420, 437, per McTiernan, Webb and Taylor JJ.
Nevertheless, as Mr Palmer correctly observed, even were that interpolation or correction made as part of the construction process, the regime provided for enables a vendor blocked from cancelling or rescinding a contract under s10B to apply to the Supreme Court for permission to rescind the contract. Section 10E(4) empowers the Court, in appropriate circumstances, to order reasonable compensation to the purchaser. Whilst the Supreme Court may, in international or interstate disputes, obtain jurisdiction over a matter otherwise beyond its authority by a voluntary submission to the Court's jurisdiction, in purely domestic matters the Court, unlike a private arbitrator, cannot acquire or have jurisdiction bestowed upon it by private contract.
In summary, even with the addition of extra words, it is difficult to see how subclause 8.3 could be operative in the case of these contracts. Ultimately, therefore, I accept Mr Palmer's contention on this point.
Even if not operative in itself, does the existence of subclause 8.3 imply some restriction upon the otherwise very general language of subclause 8.4, the one under which Fuller Road acted or purported to act in making the cancellation? I was initially attracted to the proposition that subparagraph (b) of the subclause, by including a cross-reference to the , thereby linked subclause 8.4 to subclause 8.3, implicitly requiring the one to be read down by reference to the other. Upon further reflection, however, the provision of the subparagraph stating that subclause 8.4 was not to be reckoned a "sunset clause" under the rather has the effect of severing the one subclause from the other. Subclause 8.4 must be read as a separate entitlement to cancel reserved to Fuller Road as per its own terms, without any restriction to be implied from the previous subclause.
"not convinced that the appellant [purchaser] is now ready and willing to complete the contract, I think there should be a proviso to meet the situation if he should prove to be unready promptly to complete the contract by payment in full. To that end the respondent should be expressly enabled to apply to the Supreme Court to fix a date for completion. If the appellant is not then ready to complete, the Supreme Court could make a decree for rescission." ((1965) [1965] HCA 18; 113 CLR 295, 315)
An initial question is what is to be made of the heading "Rescission - Inability to Complete"? If the subclause is operative only where the vendor is unable to complete a subdivision, this "inability" has been given the lie by the registration of the subdivision substantially in the original form. As previously noted, the usual boilerplate provision to the effect that headings do not affect the construction of the substantive provisions of the contract is not to be found in these contracts. Mr Palmer contended, however, that whatever the standing of headings might be in this situation, they ought not to be allowed to modify what are otherwise clear words or create an ambiguity which is not to be found in the substantive provision of the subclause itself. I accept that contention.
Mr Stuckey and Mr Brimfield noted that subparagraph (a) - the operative provision of the subclause - dealt with two subject matters: first, "when to seek registration of the plan of subdivision", and, second, the issue of cancellation. They contended, therefore, that these two subject matters were linked and it would only be competent for Fuller Road to effect a cancellation if it had in effect delayed or deferred registration of the plan of subdivision. Whilst the plaintiffs were critical of the progress of the draft plans to registration, as previously noted, there was no evidence of any pause, deferral or reset in the progress towards registration. Having regard to the wording of the subparagraph (subject to what I say below), I reject the contention that there must necessarily have been a delay or deferral in submission of the relevant plan for registration for the power of cancellation to arise. The discretion as to "when to seek registration" was vested in Fuller Road. It chose a particular time to seek registration, and, having made that choice, the discretion as to cancellation accrued having regard to the stated considerations.
Those considerations, as stated in the subclause, are: