Fuller v Albert (No 2) [2021] NSWCA 183

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fuller v Albert (No 2) [2021] NSWCA 183 Hearing dates: On the papers Date of orders: 23 August 2021 Decision date: 23 August 2021 Before: Macfarlan JA; Brereton JA; Emmett AJA Decision: (1) The Alberts have leave to file an Amended Notice of Motion in the form annexed to their written submissions. (2) Within the times stated in (3) below, the parties may file and serve written submissions (each not exceeding 2000 words in length) as to the appropriate order concerning costs of the appeal and as to whether the proceedings should now be remitted to the Equity Division as stated in the Principal Judgment. (3) The Alberts are to file their submissions, if any, within three working days of today's date, Mr Fuller within three days thereafter and the Alberts in reply within a further three days. (4) The Amended Notice of Motion is otherwise dismissed with costs. Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – application to reopen appeal under UCPR r 36.16 – whether Court determined the appeal on a ground not pleaded at trial – whether Court found ordinarily implied general obligation in contract to cooperate – Court found particular contractual terms pleaded, the essence of which was cooperation to achieve stated purpose CONTRACT – remedies – specific performance – whether Court found breach of contract – order for specific performance does not require proof of breach – sufficiently reasonable apprehension of breach may support order for specific performance JUDGMENTS AND ORDERS – reasons – duty to give reasons – whether Court gave adequate reasons in rejecting contentions of abandonment and unilateral release – matters relied on by parties referred to and rejected – reasons sufficiently explained conclusion reached – standard for reasons depends on nature of case, submissions and issues engaged Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 14.9 Supreme Court Act 1970 (NSW), s 68 Cases Cited: Aktas v Westpac Banking Corporation Ltd (No 2) (2010) 241 CLR 570; [2010] HCA 47 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 DTR Nominees Pty Limited v Mona Homes Pty Limited (1978) 138 CLR 423; [1978] HCA 12 DW v The Queen [2004] ACTCA 22; (2004) 150 A Crim R 139 Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53 Gautam v Health Care Complaints Commission [2021] NSWCA 85 GC NSW Pty Ltd v Galati [2020] NSWCA 326 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Lawrence v Ciantar (No 2) [2020] NSWCA 186 Ryder v Frohlich [2004] NSWCA 472 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Summers v Commonwealth (1918) 25 CLR 144 Turner v Bladin (1951) 82 CLR 463 Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362 Wolseley Investments Pty Ltd v Gillespie [2007] NSWCA 358; (2007) 13 BPR 24,813 Texts Cited: ICF Spry, Equitable Remedies (7th ed, 2007, Lawbook Co) Category: Procedural rulings Parties: Eric Andrew Fuller (Appellant) Kerry Albert (First Respondent) Sandra May Albert (Second Respondent) Matcove Pty Ltd (Third Respondent) Representation: Counsel: D L Cook SC (Appellant) C R Newlinds SC with M E Hall (First and Second Respondents) No appearance (Third Respondent)