Morrow v Tucker

Morrow v Tucker - [2006] NSWSC 1358 - NSWSC 2006 case summary — Zoe

[11]

3 The plaintiff's notice of motion filed on 19 October 2006 in the same proceedings seeks the following orders or directions:

The defendant execute all such instruments and do all such things as are necessary in order to specifically perform the said agreement in compliance with Justice Palmer's order of 26 July 2006.
For the purposes of giving effect to Order 1: (a) the defendant is to attend the office of the Registrar in Equity, Supreme Court, Queens Square at on October 2006 and to execute a Transfer in registrable form by the defendant as transferor to the plaintiff as transferee of the land known as 16 Rookes Road, Salt Ash in the State of New South Wales contained in Certificate of Title Folio Identifier 4/228207; (b) the defendant is to bring with her to the said appointment the title documents for the said land; (c) the plaintiff is to attend the said appointment and to bring with her a bank cheque in the sum of $296,668.58 payable to the defendant, May Tucker being the sum specified in the Settlement Adjustment Schedule annexed hereto as the balance due on completion, and an authority for Swaab Attorneys as stakeholder to account to the defendant for the deposit held by them; (d) the Transfer when executed is to be handed to the plaintiff together with the title documents for the said land in exchange for which the defendant is to be handed the bank cheque for the sum of $296,668.58 and the authority for Swaab Attorneys to account to her for the deposit; (e) if the defendant fails to attend the said appointment or fails to execute any necessary document or to take any necessary step to give effect to Order 1, the Registrar in Equity shall be empowered pursuant to s 94 Uniform Civil Procedure Act 2005 (NSW) to so act in her place; (f) in the event of settlement taking place in accordance with sub-paragraph (e) of these orders, the plaintiff is to pay the sum specified in the Settlement Adjustment Schedule annexed hereto into Court and to deliver to the Registrar in Equity an authority for Swaab Attorneys to account to the Registrar for the deposit held by them; (g) any amount paid into Court pursuant to sub-paragraph (f) of these orders, to be paid out to the defendant upon application to the Court subject to any further orders which the Court may make upon such application being made.
The plaintiff's caveat number AC95660 be withdrawn as and from the date of settlement.
The defendant to pay the plaintiff's costs.
Each party to be at liberty to apply for further directions on giving 7 days notice to the other party.

[16]

8 A helpful summary of the relevant procedural and substantive principles is found in Fry on Specific Performance (6th ed, 1921) at 546 - 547. That summary supports use of the notice of motion procedure in circumstances where relief is sought following a judgment for specific performance and the contract has not been completed: 1170 . It may and not unfrequently does happen that after judgment has been given for the specific performance of a contract, some further relief becomes necessary, in consequence of one or other of the parties making default in the performance of something which ought under the judgment to be performed by him or on his part; as, for instance, where a vendor refuses or is unable to execute a proper conveyance of the property, or a purchaser to pay the purchase-money. The character of the consequential relief appropriate to any particular case will of course vary according to the nature of the subject-matter of the contract and the position which the applicant occupies in the transaction; but in every case the application must, under the present practice, be made only to the Court by which the judgment was pronounced, and the multiplicity of legal proceedings which sometimes occurred before the fusion of the jurisdictions of the Courts of Chancery and Common Law is now practically impossible. 1171. There are two kinds of relief after judgment for specific performance of which either party to the contract may, in a proper case, avail himself. 1172. (i.) He may obtain ( on motion in the action ) an order appointing a definite time and place for the completion of the contract by payment of the unpaid purchase-money and delivery over of the executed conveyance and title-deeds, or a period within which the judgment is to be obeyed, and, if the other party fails to obey the order, may thereupon at once issue a writ of sequestration against the defaulting party's estate and effects… 1173. (ii.) He may apply to the Court ( by motion in the action ) for an order rescinding the contract. On an application of this kind, if it appears that the party moved against has positively refused to complete the contract, its immediate rescission may be ordered: otherwise, the order will be for rescission in default of completion within a limited time. (emphasis added)

[36]

17 In Precision Pest Control Pty Ltd v Ligon 158 Pty Ltd (2004) 12 BPR 22,681 a specific performance decree was made by consent. It contained a declaration that a contract for the sale of land be specifically performed and carried into execution on the basis that the vendor would convey the land to the purchasers; and, secondly, an order that, in the event of default, the Registrar in Equity be empowered to execute all instruments and do all things in the name of, and on behalf of, the vendors as may be necessary in order to specifically perform and carry into execution the contract. The Court noted the agreement of the parties concerning the time and place for, and amount to be paid on, completion. Subsequently the plaintiff purchasers applied in the same proceedings for an order that the Registrar execute a transfer in accordance with the consent orders. Palmer J held at 22,683 that, although the orders were defective in many respects, "…the future performance of the contract was, by those orders, brought within the control of the court and no party to the contract could exercise a right of rescission or serve a notice to complete without the approval of the court or without first having applied successfully to the court for an order vacating the orders for specific performance: Jag Investment Pty Ltd v Strati [1981] 2 NSWLR 600; Facey v Rawsthorne (1925) 35 CLR 566; Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245. The defendants have never applied to vacate the orders made on 10 November 2004." Palmer J treated the application before him as one whereby the plaintiffs sought the Court's supervision as to how the contract was now to be performed. His Honour said at 22,685 [24]: "How the court supervises the performance of a contract within its control is a matter for the court's discretion: see Jag Investment Pty Ltd v Strati, above. The plaintiffs' failure to bring to the settlement a cheque in favour of the correct payee was a mistake easily corrected, as the plaintiffs immediately offered to do. Mr Binetter unreasonably refused them the opportunity to correct the mistake. In my opinion, the defendants cannot rely upon the defendants' [sic] mistake as a ground upon which the court should now refuse to give such directions as will ensure due performance of the contract by the defendants".

[42]

21 In my view, this is not a sound point of distinction. In principle, where an order for specific performance has been made, whatever its precise form, the rights and obligations of the parties come under the control of the Court, or, looking at the other side of the coin, the working out of the order of specific performance comes under the control of the Court. In principle, I see no justification for a different procedure depending on the precise form of the order. This is supported by the authority of Pratt v Hawkins (1991) 32 NSWLR 319 where an order was made by consent that a contract for the sale of land "be specifically performed according to its terms". This was similar in form to the order made in the present case. Subsequently a further order was made by consent that the contract "be rescinded". An application was made for the return of the deposit under the Conveyancing Act 1919 s 55(2A). Young J (as his Honour then was) held at 324: "When an order for specific performance of a contract is made, the contractual rights of the parties under the contract continue in existence but there is superadded the requirement to defer to the court's direction and control in respect of any matter which the parties cannot themselves solve by agreement". After referring to Singh, Buckman and Jag (above), his Honour continued at 325: It is not competent, in my view, for vendors who have obtained an order for specific performance to give a notice to complete without the leave of the court… As after a decree of specific performance there can be no termination without the leave of the court, the only appropriate method of procedure is to write a letter to the party allegedly in default indicating that a notice of motion seeking termination will be filed if there is no action by the opponent. Indeed, the preferable course is to apply for directions for the implementation of the decree of specific performance which fixes times and places for various steps to be performed and contains a default order for termination if those times are not complied with.

At a glance

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Judgment (48 paragraphs)

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Legislation Cited (1)

Cases Cited (7)

Cited By (5)