Maloy v Jelacic (No 2) [2003] NSWSC 412

New South Wales Supreme Court

CITATION : Maloy v Jelacic (No 2) [2003] NSWSC 412 HEARING DATE(S) : 14/04/03, 15/04/03 JUDGMENT DATE : 16 May 2003 JURISDICTION: Equity Division JUDGMENT OF : Barrett J DECISION : Specific performance denied

CATCHWORDS : CONVEYANCING - matters between contract and completion - contract conditional on vendors obtaining building certificate - previous finding that vendors did not take all reasonable steps and that their breach caused non-issue of certificate - further evidence upon re-opening after judgment - judgment shown to have proceeded on factual misapprehensions as to Council's position and requirements - finding of causation no longer justified The City of Gosford v Marim Pty Ltd (1990) 6 BPR 13,871 CASES CITED : Mitchell v Pattern Holdings Pty Ltd [2002] NSWCA 212 United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 404 PARTIES : Patricia Margaret Maloy - Plaintiff John Jelacic and Nigel David Pridham - Defendants FILE NUMBER(S) : SC 4478/02 COUNSEL : Mr P B Walsh - Plaintiff Mr S Y Reuben - Defendants SOLICITORS : Champion Legal - Plaintiff George Bassil & Associates - Defendants

- 21 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

FRIDAY, 16 MAY 2003

4478/02 – PATRICIA MARGARET MALOY v JOHN JELACIC & ANOR (NO 2) JUDGMENT 1 I gave judgment in these proceedings on 10 February 2003 and concluded that the plaintiff as purchaser was entitled to specific performance of a contract for the sale of land at Cherrybrook as against the defendants as vendors. I directed that draft short minutes of orders giving effect to my decision be brought in. Before any such short minutes were filed, the defendants gave notice of their intention to seek to re-open and to lead further evidence. On 17 March, the proceedings were listed before me and a notice of motion was filed in court seeking such an order. It was supported by an affidavit of Mr Jelacic, one of the defendants, to which I shall return. I directed that the notice of motion be returnable before me on 14 April 2003. I set aside the whole of that day and the next and made certain directions for the filing of any further affidavits. 2 When the matter came before me on 14 April 2003, I granted leave to re-open and to lead additional evidence. On that day and the next, I received further evidence and submissions from both parties. I considered this to be an appropriate and necessary course in the interests of justice because of a well-developed concern, based on the evidence read on the re-opening application, that my decision had miscarried because of of serious misapprehensions on vital matters of fact. I shall explain what I mean. 3 Central to my original decision were certain findings as to the steps the Hornsby Shire Council required to be taken by the defendants in order to obtain the building certificate that played a pivotal role under special conditions 19 and 20 of the contract for sale which are set out at paragraph 1 of my earlier judgment. My findings were that a letter from Mr Fredericks of the Council to Mr Jelacic dated 27 November 2002 represented what I called a "blueprint" for the defendants. That letter was as follows: "Dear Mr Jelacic: Application for Building Certificate – Section 149 (D) of the Environmental Planning & Assessment Act, 1979. Premises: Lot 7420 DP 736848 (No. 64) Hancock Drive, Cherrybrook _______________________________________________________ I refer to the above application, the following matter(s) will need to be addressed to Council's satisfaction, before a building certificate can be issued. 1. Complete the lower ground floor deck. 2. Amend Clause 16 of the 88B Instrument to include the following wording: 'Decking timbers are to be hardwood and a minimum gap of 8mm is to be allowed between the decking timbers. Any exposed bearers or timbers forming part of any deck are to be fully protected from fire in accordance with relevant sections of AS 3959. The area under the timber deck is to be kept free of all combustible materials.' 3. The 88B Instrument shall be registered with the Land Titles Office, evidence of which shall be submitted to Hornsby Shire Council. 4. Once these matters have been addressed the Applicant shall apply for a final Occupation Certificate for Development Application No.370/99. Upon issue of the Occupation Certificate the Building Certificate shall be issued under Section 149 (D) of the Environmental Planning & Assessment Act, 197.