HARDY & ANOR v WARDY [2001] NSWSC 180

Reported Decision : (2001) 10 BPR 18,577 (2001) NSW Conv R 55-986

New South Wales Supreme Court

CITATION : HARDY & ANOR v WARDY [2001] NSWSC 180 revised - 3/10/2001 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 3936 of 2001 HEARING DATE(S) : 6, 7 & 8 March 2001 JUDGMENT DATE : 21 March 2001

Gavan Hardy - Plaintiff PARTIES : Motor Direct Pty Ltd - Second Plaintiff Edmond Wardy - Defendant JUDGMENT OF : Bryson J at 1

COUNSEL : R. Kaye; P. Braham - Plaintiffs D. Cassidy QC; E. Olsson - Defendant SOLICITORS : Mallesons Stephen Jaques - Plaintiffs John Ajaka - Defendant CATCHWORDS : OPTION TO PURCHASE - VENDOR and PURCHASER - Option to purchase in lease - claim for specific performance on exercise of option was resisted on (1) general denial of delivery of notice of exercise of option - found as a fact that it was delivered (2) contention that on true construction the lease and option related to the building only and not the land on which it stood, and the notice of exercise claiming to purchase the land was ineffective - held that the lease and option related to building and land (3) illegality of agreement to sell unsubdivided land - held that s.327 of LGAct 1919 did not apply as it was repealed before exercise of option and in any event did not make agreement to sell illegal see subs.327(3) (4) claim that documents delivered departed in their terms from requirements for exercise of option - held that intention was clear, departures were insubstantial and there was no repudiatory intention. Order for specific performance subject to obtaining subdivision approval. Conveyancing Act 1919, s.54A, s.170, Div.3 of Pt.23 LEGISLATION CITED : Local Government Act, 1919-1958 Environmental Planning and Assessment Act 1979 Environmental Plannning and Assessment (Amendment) Act 1997 Wheeldon v. Burrows (1879) 12 ChD 31 Wilcox v. Richardson (1997) 43 NSWLR 4 Pejovic v. Malinic (1960) 60 SR NSW 184 Butts v. O'Dwyer (1952) 87 CLR 267 Ballas v. Theophilos [No. 2] (1957) 98 CLR 193 CASES CITED : Prudential Assurance v. Health Minders (1987) 9 NSWLR 673 DTR Nominees Pty Ltd v. Mona Homes Pty Ltd (1978) 138 CLR 423 Della Imports Pty Ltd v. Birkenhead Investments Pty Ltd (1987) NSW ConR 55358 Quadling v. Robinson & Anor (1976) 137 CLR 192 Cavallari v. Premier Refrigeration Co. Pty Ltd (1952) 85 CLR 20 Re Lehrer and the Real Property Act (1961) 61 SR NSW 365 DECISION : Order for specific performance