Fuller v Albert (No 3) [2021] NSWCA 226

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fuller v Albert (No 3) [2021] NSWCA 226 Hearing dates: On the papers (submissions of 25, 27, 31 August 2021) Date of orders: 23 September 2021 Decision date: 23 September 2021 Before: Macfarlan JA; Brereton JA; Emmett AJA Decision: (1) Vary Order (2) made by this Court on 18 May 2021 to read "Orders 1, 2, and 4 made on 14 July 2020 be set aside". (2) Set aside Order (5) made by this Court on 18 May 2021 and in lieu thereof grant leave, to the extent that it be required, to Mr Albert to rely on his affidavit sworn on 11 November 2020, and to Mr Fuller to rely on the affidavit of Jason Wasiak affirmed 20 November 2020, with costs of the motion filed on 11 November 2020 to be costs in the appeal. (3) Set aside Order (3) made by this Court on 18 May 2021 and in lieu thereof: (a) Give judgment that the third respondent Matcove Pty Ltd pay the appellant the sum of $393,750. This judgment takes effect on 23 September 2021. (b) Declare that the sum referred to in Order (3)(a) is a charge on the third respondent's land comprised in Folio Identifier 1/1097743 at Moonee Beach. (c) Order that the proceedings be remitted to the Equity Division to take accounts as between Mr Fuller as mortgagor and Mrs Albert as mortgagee of the Mortgaged Share, to order that, upon payment by Mr Fuller within 21 days of the amount certified to be owing, Mrs Albert re-transfer the Mortgaged Share to Mr Fuller, and to determine the costs of the proceedings at first instance on the redemption claim. (d) Order that Mr Albert pay Mr Fuller's costs of the proceedings after 26 April 2019 at first instance on the contract claim. Catchwords: APPEALS – Orders on appeal – Remittal – Whether more appropriate for Court to finally resolve part of the dispute – Where neither party sought remitter – Where Court has all the evidence and submissions – Where Court in best position to understand own judgment – Order for remittal set aside CONTRACTS – Remedies – Specific performance – Whether to exercise discretion to decline specific performance – Imbalance of rights and entitlements of parties – Impairment of development application – Lapse of time – Difficulty of framing orders for specific performance – Likelihood that ongoing supervision necessary – Land of no greater importance to appellant than its value – Availability of alternative remedies – Specific performance declined – Lord Cairns' Act damages awarded in substitution for specific performance – Resolution of competing valuations COSTS – Party/Party – Exceptions to general rule that costs follow the event – Offer of compromise made during hearing – Where appellant only liable for costs if successful solely on basis of offer – Offer not the basis of appellant's success – No reason for costs not to follow event COSTS – Party/Party – Exceptions to general rule that costs follow the event – Whether error found by Court of Appeal was attributable to successful appellant not raising point at trial – Where appellant has always advanced case in appropriate terms – No reason for costs not to follow event Legislation Cited: Chancery Amendment Act 1858, 21 & 22 Vict, c 27 Supreme Court Act 1970 (NSW), s 68 Uniform Civil Procedure Rules 2005 (NSW), r 36.16 Cases Cited: ASA Constructions Pty Ltd v Iwanov [1975] 1 NSWLR 512 Bosaid v Andry [1963] VR 465 Crabb v Arun District Council (No 2) (1976) 121 SJ 86 Dell v Beasley [1959] NZLR 89 Edward Street Properties Pty Ltd v Collins [1977] Qd R 399 Ferguson v Wilson (1866) LR 2 Ch App 77 Fuller v Albert (2021) 152 ACSR 80; [2021] NSWCA 88 Fuller v Albert (No 2) [2021] NSWCA 183 Madden v Kevereski [1983] 1 NSWLR 305 Matcove Pty Ltd, In the matter of [2020] NSWSC 625 Matcove Pty Ltd, In the matter of [2020] NSWSC 897 McKenna v Richey [1950] VLR 360; ALR 778 Sayers v Collyer (1884) 28 Ch D 103 Tamplin v James (1880) 15 Ch D 215 Weily v Williams (1895) 16 LR (NSW) Eq 190 Wentworth v Attorney-General (NSW) (1982) 154 CLR 518; [1982] HCA 70 Wroth v Tyler [1974] Ch 30; 1 All ER 897 Texts Cited: P M McDermott, Equitable Damages (Butterworths, 1994) R N Barber, "The Operation of the Doctrine of Part Performance, in Particular to Action for Damages" (1973) 8 University of Queensland Law Journal 79 Category: Consequential orders 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)