New South Wales Supreme Court CITATION : Saffron Sun Pty Ltd v Perma-Fit Finance Pty Ltd [2003] NSWSC 1152 HEARING DATE(S) : 25 November 2003 JUDGMENT DATE : 25 November 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Specific performance granted. CATCHWORDS : EQUITY [379] - Equitable remedies - Specific performance - The jurisdiction in general - General principles - Enforcement by purchaser. PARTIES : Saffron Sun Pty Ltd (P) Perma-Fit Finance Pty Ltd (Admin Appointed) (D) FILE NUMBER(S) : SC 4913/03 COUNSEL : Dr J D Renwick (P) No appearance (D) SOLICITORS : Norman Waterhouse (P) No appearance (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J TUESDAY, 25 NOVEMBER 2003 4913/03 SAFFRON SUN PTY LIMITED v PERMA-FIT FINANCE PTY LIMITED JUDGMENT 1 HIS HONOUR: These are proceedings which include a claim for specific performance of the sale of land. The plaintiff seeks to proceed ex parte to a hearing of its claim for specific performance, standing over its claim for damages to be dealt with at a later time. 2 The plaintiff has proved that the defendant is the registered proprietor of the relevant land, which is vacant land at Toukley. It sold the land to the plaintiff by a contract in conventional form on 6 June 2002. The contract provided for completion 42 days after contract, which time is long since expired. 3 The plaintiff has pressed for completion. Indeed, it served a formal notice to complete which was good as to time, although, of course, service of a notice to complete is not a necessary pre-condition to specific performance. However, the notice helped to make it plain that the plaintiff was demanding performance of the contract. One of the responses that was made to the plaintiff's pressing for performance of the contract was the rather curious response from Hewitts Commercial Lawyers on 18 June 2003 that the defendant, "is no longer the trustee of the above property". The plaintiff justifiably replied that this was of no moment to it and it continued to demand performance. 4 The defendant company is now in voluntary administration. The most recent communication made on its behalf is a rather curious letter from Clayton Utz, Solicitors, dated today and following on a directions hearing which occurred yesterday. It confirmed that the defendant company is in voluntary administration, that the voluntary administrator is likely to be appointed the liquidator of the company, that the contract of sale "is an uncommercial transaction" and that there would be utility in adjourning the plaintiff's present application for determination of the proceedings until such time as the voluntary administrator is appointed liquidator. However, it concludes by requesting that the plaintiff's solicitor today "mention our appearance on the basis your client's motion is unopposed". Whilst there is not a notice of motion filed in court and the plaintiff is proceeding under its summons, it is quite plain from this letter that the administrator knows that the plaintiff is today proceeding to obtain orders for specific performance, chooses not to attend and envisages that the matter will proceed unopposed in its absence. 5 The plaintiff has also, by evidence, established its readiness, willingness and ability to perform the contract on its part at the commencement of the proceedings and now. It has, by that evidence, shown the availability of funds to pay the balance of the purchase price under the contract. In fact, it has indicated its willingness to pay a little more than the purchase price in order to permit an existing mortgage to the National Australia Bank to be paid out so that the plaintiff may take unencumbered title to the property. 6 In these circumstances it appears to me that the plaintiff has established its entitlement to specific performance. A draft form of orders has been laid before me by Dr Renwick, of counsel for the plaintiff. With some small additions by me, I deem it appropriate to make orders by reference to that form of orders. ********** Last Modified: 02/20/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.