Prime Constructions Pty Ltd v Westbridge Investments Pty Ltd [2004] NSWSC 861

Reported Decision : (2004) 22 ACLC 1390

New South Wales Supreme Court

CITATION : Prime Constructions Pty Ltd v Westbridge Investments Pty Ltd [2004] NSWSC 861 HEARING DATE(S) : 3 and 15 September 2004 JUDGMENT DATE : 15 September 2004 JURISDICTION: Equity Division JUDGMENT OF : Young CJ in Eq DECISION : Declaration made. Verdict for the plaintiff for $11,721.60. Order the defendant to pay the plaintiff's costs of the proceedings, but no costs are to be allowed for the 15 September 2004 hearing.

CATCHWORDS : DEEDS [6][7]- Execution- Informal execution- Binding in estoppel or by ratification even though not executed by other party. EQUITY [389]- Specific performance- Not awarded if other remedies more efficacious. LEGISLATION CITED : Conveyancing Act 1919, s 51A Corporations Act 2001, s 127 Carew's Case (No 2) (1855) 7 De GM & G 43; 44 ER 17 Carter v Schmierer BC 200300443 Dibbins v Dibbins [1896] 2 Ch 348 CASES CITED : Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 Masters v Cameron (1954) 91 CLR 353 Nicom Interiors Pty Ltd v Circuit Finance Pty Ltd (2004) 50 ACSR 25 Scook v Premier Building Solutions Pty Ltd (2003) 28 WAR 124 PARTIES : Prime Constructions Pty Limited (P) Westbridge Investments Pty Limited (D) FILE NUMBER(S) : SC 3671/04 COUNSEL : A R Davis (P) SOLICITORS : Shaw McDonald Pty Ltd (P)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 15 September 2004

3671/04 – PRIME CONSTRUCTIONS PTY LTD v WESTBRIDGE INVESTMENTS PTY LTD JUDGMENT 1 HIS HONOUR: By statement of liquidated claim filed in the Local Court at the Downing Centre, Sydney, on 3 February 2003 the plaintiff claimed $11,754.60, and costs, from the defendant for goods sold and delivered. The claim was disputed and both parties were represented by solicitors, a Mr Park and a Ms Lim for the plaintiff, and a Ms Williams for the defendant. 2 On 21 January 2004 the plaintiff's solicitor made an offer that the parties settle the matter for the amount claimed, with each party to pay its own costs, with a deed of release to be entered into between the parties. On 23 January 2004 the defendant's solicitor accepted this, as a matter of principle, and Ms Williams emailed Ms Lim as follows: "I attach the deed of release in this matter. Please let me have any comments as I would like to prepare execution copies as soon as possible. Finally, I am now holding the cheque in favour of your client for $11,721.60." 3 Mr Park accepted the deed as drafted, and on 9 February 2004 Ms Williams emailed him the deed for execution. 4 On 12 February 2004 Mr Park emailed Ms Williams: "Dear Kim, The terms referred to in your e-mail below is acceptable. Can you please fax me a signed copy and I will attend to its filing straight away? Also, I've received the signed deed from your client today so we are now in a position to exchange deeds and the settlement cheque. Can you please advise your client that we are ready and inquire as to when the deeds can be exchanged?"