Vella v Nergl Developments Pty Ltd & Ors (No. 3) [2021] NSWSC 1352

Supreme Court New South Wales

Medium Neutral Citation: Vella v Nergl Developments Pty Ltd & Ors (No. 3) [2021] NSWSC 1352 Hearing dates: 16 July 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Equity Before: Slattery J Decision: Court settles form of instruments to complete the remedy of specific performance. Parties directed to bring in short minutes of order to give effect to these reasons. Catchwords: SPECIFIC PERFORMANCE – form of orders – orders for specific performance of heads of agreement to settle litigation and to grant an easement – orders for specific performance already made in a 2020 judgment which was upheld on appeal in 2021 – matter remitted to the trial judge to settle the final form of orders – dispute about whether caveats lodged by the proposed dominant tenement holder of the agreed easement over the proposed servient tenement should be withdrawn before a Conveyancing Act 1919, s 88B instrument lodged and deed of settlement executed – disputes about the form of instrument under Conveyancing Act 1919, s 88B – ascertainment of what was required by the original heads of agreement – scope of the Court's discretion to settle additional terms to achieve that specific performance of an agreement. Legislation Cited: Civil Procedure Act 2005, ss 56, 57 Real Property Act 1900, s 74MA(2) Supreme Court Act 1970, s 23 Cases Cited: Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 Butt v M'Donald (1896) 7 QLJ 68 Ford-Hunt v Raghbir Singh [1973] 2 All ER 700 Malago Pty Ltd v AW Elliz Engineering Pty Ltd (2013) 29 BCL 417 Nergl Developments Pty Ltd v Vella [2021] NSWCA 131 Riltang Pty Ltd v L Pty Ltd (2004) 12 BPR 22,347 Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 Vella v Nergl Developments Pty Ltd & Ors (No. 2) [2021] NSWSC 648 Vella v Nergl Developments Pty Ltd & Ors [2020] NSWSC 1405 Texts Cited: PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) Category: Costs Parties: Plaintiff: Vicki Vella First Defendant/Cross-Claimant: Nergl Developments Pty Limited ACN 008 645 734 Second Defendant: Peter Vella Fourth Defendant/Cross-Claimant: Kindelon Pty Ltd Representation: Counsel: Plaintiff: J Sexton SC, D Neggo First and Fourth Defendant/Cross-Claimants: D. Miller SC, P. R. Gaffney