OSBORNE v AYMMATT PTY LTD [1988] NSWCA 109

OSBORNE v AYMMATT PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MCHUGH JJA 26 September 1988, 26 September 1988 [1988] NSWCA 109

PRACTICE — appeal — abuse of process — motion for dismissal of appeal — vendor and purchaser dispute — time for completion fixed by contract — parties agree to vary time — fact of agreement to vary not disputed — vendor subsequently relies on non-compliance with contractual term — purportedly rescinds contract — purchaser seeks specific performance — Bryson J so orders — no challenge to finding as to agreement — no ground shown that trial judge had erred — change of counsel in the hope of finding a ground of challenge not yet appearing — damages and costs ordered below duly paid — contract later completed and purchaser now in possession — vendor proffers security for costs — held: in the circumstances, appeal should be dismissed as an abuse of process. ORDERS 1. Appeal dismissed. 2. The opponent to pay the claimant's costs of the motion and of the appeal.

Kirby P This is an unusual case. Before the Court is a motion for the dismissal of an appeal as an abuse of process. Alternatively, the claimant seeks an order that the opponent give security for the costs of the appeal.

The matter is before the Court following a judgment given by Bryson J on 1 July 1988. Orders for specific performance and consequential orders were made by his Honour on that day in a case, arising out of a vendor and purchaser dispute between the parties.

The claimant was the purchaser and the opponent the vendor in a contract for the sale of land. The agreement between them provided that the contract should be completed on 18 November 1987. By the contract, time was made of the essence. Various misunderstandings as to time and other matters occurred between the representatives of the parties. However, these are not material to the present proceedings. On 17 and 18 November 1987 the parties agreed to the settlement taking place on 19 November 1987. Their representatives agreed upon the time and place for such settlement. The representative for the claimant duly attended at the time and place arranged. The representative for the vendor did not. The vendor purported to rescind the contract a day later, upon the basis that the written terms of the contract had not been complied with. In these circumstances the claimant sued the opponent for specific performance.