Crawford-Elias v R & A Developments Pty Ltd [1999] NSWSC 903

New South Wales Supreme Court CITATION : Crawford-Elias v R & A Developments Pty Ltd [1999] NSWSC 903 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 3266/99 HEARING DATE(S) : 30 & 31 August 1999 JUDGMENT DATE : 31 August 1999

PARTIES : Kelly Crawford-Elias (P) R & A Developments Pty Ltd (D) JUDGMENT OF : Hamilton J

COUNSEL : S W Gibb (P) No appearance (D) SOLICITORS : John de Mestre & Co (P) No appearance (D) CATCHWORDS : CONVEYANCING [106] - Relationship of vendor and purchaser - Breach of contract - Declaration of right - Circumstances in which declaratory relief alone may be granted; COSTS [574] - Departing from general rule - Order for costs on indemnity basis- Relevant considerations - Defendant represented but does not appear either to oppose or consent to orders Lucas & Tait (Investments) Pty Ltd v Victoria Securities Limited NSWCA 28 November 1974 unreported Minton Apartments Pty Ltd v McLaurin & Tait (Developments) Pty Ltd (1976) 133 CLR 671 CASES CITED : Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Trans Realties Pty Ltd v Grbac [1975] 1 NSWLR 170 Meagher, Gummow & Lehane (3rd ed, 1992) [1924] Spry on Equitable Remedies (5th ed, 1997) 128-129 DECISION : Declaration that contract binding and enforceable and that parties are bound to perform same.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J

TUESDAY, 31 AUGUST 1999

3266/99 KELLY CRAWFORD-ELIAS v R & A DEVELOPMENTS PTY LTD

JUDGMENT His Honour: 1 R & A Developments Pty Ltd, the defendant in these proceedings, is the developer of a home unit development on land at Rose Bay. By contract dated 14 April 1999 it sold apartment 9 in that development to the present plaintiff for the price of $750,000. The contract contains a curious special provision to the effect that, if the contract be completed on time, the purchase price will be reduced to $500,000. There is no evidence before the Court of the present value of the apartment. The contract precluded the plaintiff from having a caveat entered upon the title to the land until the proposed plan of strata subdivision be registered, ie, she was precluded from lodging a caveat which affected the land in globo. The contract also contains a provision to the effect that if, despite the expenditure of due efforts, registration of the plan of strata subdivision be not effected by 30 September 1999 then either party may terminate the contract. That date has not yet been reached, nor has the plan of subdivision yet been registered. 2 At the date of contract the land was, and still is, subject to a registered first mortgage to Australia and New Zealand Banking Group Limited ("the Bank"). After the date of contract, the Bank appointed a Mr Lord as the receiver and manager of the land exercising its power under the mortgage. That appointment occurred on 10 June 1999. Correspondence was entered into between the plaintiff and the receiver in the course of which Le Compte Davey, acting as the receiver's solicitors, on 10 July 1999 stated: