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. At the hearing it was admitted that an appointment had been made for settlement on 19 November 1987. Bryson J made the following finding: "Tt appears to me that, on any view of the evidence, it is established, although the details are not established, that an arrangement was made between those representing each party that settlement would take place on Thursday (19 November 1987) at a nominated time and place, that is to say there was an agreed arrangement that the settlement would take place outside the contract time for completion. Upon that premise, which it should be observed is not challenged in the notice of appeal, his Honour made the orders sought by the claimant. 2 UNREPORTED JUDGMENTS The opponent's notice of appeal is in ample terms. Effectively it challenges various findings that his Honour made concerning the facts in dispute. Two additional facts were placed before the Court today, upon which the Court was asked to act. The first was that it was accepted by the opponent that senior counsel then appearing for the opponent had said in the court below: "T don't propose to make submissions in response to the submissions as to the enforceability of the contract". and: "On estoppel, there will be no submissions which I can usefully make". Counsel appearing for the opponent in this Court today has indicated, with appropriate candour, that the desire of his client is to secure the attention to the case of a fresh legal mind. No new senior counsel has apparently yet been retained. Certainly no fresh arguments have been advanced to the Court, upon the basis of which, in the light of the foregoing and the concessions made by experienced senior counsel before Bryson J, the decision below would possibly be reversed. The most that the opponent could rely upon was the speculation, in effect, that something might turn up if the case were examined by new counsel. Since the decision was made, a number of further developments have occurred. These were also put before the Court as fresh facts. They were not contested. The amount ordered by Bryson J to be paid to the claimant, namely $30,000, which covers an amount for damages and also the costs of the proceedings at first instance, have been duly paid. The contract eventually proceeded to settlement. The claimant is in possession at the time of this hearing. The opponent proffered to this Court an undertaking to pay an amount of $3,025, being the sum estimated by the solicitor for the claimant to be the likely taxed costs of the appeal, were it to proceed. It was agreed by counsel for the opponent that this sum should be paid as security for the costs of the appeal as sought by the claimant were the appeal to proceed. But the question remains whether the appeal, in the circumstances which I have set out, should continue in the Court's list or should now be terminated. Obviously it is a serious matter to dismiss an appeal without a hearing on the full merits. The opponent, by law, has an appeal as of right against Bryson J's judgment. It brings that appeal to the Court within time. It proffers an undertaking to deposit the security for costs of the appeal sought by the claimant. Indeed, when taxed as to the possibility of an order for solicitor and client costs, counsel for the opponent had nothing seriously to say in resistance to such an order were the Court minded to add such a condition to an order for security for costs. Nevertheless, in the circumstances which have been set out, it seems to me that the proceedings should not continue. No suggestion has been made of any argument, at all, that could be advanced on the appeal which would permit the disturbance of the conclusion reached by Bryson J. On the contrary, that conclusion appears to be the inescapable conclusion which the law requires on the facts that his Honour found. I repeat that the central fact, as found, is not challenged in the notice of appeal. Nor was it suggested today that it would, or could, be challenged. In these circumstances I consider that the pursuit of the appeal, which may have been lodged for other reasons about which I do not speculate, is pointless. It therefore represents an abuse of the process of the Court. In my opinion, the claimant is entitled to the relief sought in the first paragraph of her motion. It is that relief which I would give her. URJ OSBORNE v AYMMATT PTY LTD (Kirby P) 3 The appeal should be dismissed as an abuse of process. The opponent should pay the claimant's costs of the motion and of the appeal. MAHONEY JA: J agree. McHUGH JA: I also agree. 5 KIRBY P: The orders of the Court are therefore as I have provided. Counsel for the Claimant: Mr RP Meagher QC and P Brereton Solicitors for the Claimant: Barwick and Co 10 Counsel for the Opponent: Dr KE Lindgren Solicitors for the Opponent: Minter Ellison