Zorbas v Titan Properties (Aust) [2005] NSWSC 213

New South Wales Supreme Court

CITATION : Zorbas v Titan Properties (Aust) [2005] NSWSC 213

HEARING DATE(S) : 14 March 2004

JUDGMENT DATE : 14 March 2005

JURISDICTION : Equity

JUDGMENT OF : Campbell J

DECISION : Specific performance ordered

CATCHWORDS : PROCEDURE - Supreme Court procedure - proceeding with case in absence of defendant - Part 34 Rule 5 Supreme Court Rules - CONVEYANCING - relationship of vendor and purchaser - breach of contract - repeated breaches by purchaser - delay in purchaser completing causes expiry of development consent - purchaser or one of its related companies having demolished cottages on land subject of contract - appropriateness of order for specific performance - time to allow for completion to occur - manner of service of order for specific performance

LEGISLATION CITED : Supreme Court Rules 1970

Pasedina (Holdings) Pty Ltd v Khouri (1977) 1 BPR 9460 CASES CITED : Sudbrook Trading Estate Ltd v Eggleton & Others [1983] AC 444

Peter Zorbas - Plaintiff Titan Properties (Aust) Pty Ltd - First Defendant PARTIES : Delta Constructions (Aust) Pty Ltd - Second Defendant Titan Projects Pty Ltd - Third Defendant

FILE NUMBER(S) : SC 5505/04

A J McInerney - Plaintiff COUNSEL : No appearance - Defendants

Magney & Magney - Plaintiff SOLICITORS : No appearance - Defendants

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

MONDAY 14 MARCH 2005

5505/04 PETER ZORBAS v TITAN PROPERTIES (AUST) PTY LIMITED & ORS JUDGMENT – Ex Tempore (Revised 15 March 2005) 1 HIS HONOUR: I note that each defendant has been called outside the Court and not appeared. I also note that the defendants filed an appearance in the matter on 12 October 2004. 2 When the defendants did not appear application was made by the plaintiff, under Part 34 Rule 5 Supreme Court Rules 1970, that the Court should proceed with the trial insofar as it has been set down today for the determination of a preliminary question. The matter is one where the defendants have been directed on three separate occasions, namely 25 October 2004, 16 November 2004, and 26 November 2004 to file a defence. At the time the matter came before me in the expedition list on 10 December 2004, and the defendants were legally represented, I directed that the defendants file and serve any evidence on which they sought to rely, together with a defence, by 5pm on 20 December 2004. I noted that the defendants had been ordered to file defences on three prior occasions and had failed to do so. I ordered that in the event that no defence was filed by 20 December 2004 the matter would proceed for hearing on the basis that there was no defence. In those circumstances, it is appropriate to proceed in the absence of the defendants pursuant to Part 34 Rule 5. * * * * * * * * 3 I note the affidavit of David Bruce Magney sworn 9 December 2004, and I note the affidavit of Peter Zorbas sworn 9 December 2004. The exhibits which are marked respectively DM-A to DM-KK to the affidavit of Mr Magney sworn 9 December 2004, will be admitted as exhibits DM-A to DM-KK in the trial. The exhibits PZ-B to PZ-G respectively of the affidavit of the plaintiff sworn 9 December 2004 will be exhibits PZ-B to PZ-G respectively in the trial. 4 I note that the plaintiff undertakes to the Court, pursuant to Part 36 Rule 10B Supreme Court Rules 1970 that the plaintiff will, by 5pm tomorrow, 15 March 2005 forward to the Chief Commissioner the name and address of the person liable to pay duty on the contract for sale dated 28 April 2004 between the plaintiff and the first defendant, together with that contract. * * * * * * * * 5 This is the determination of a separate question concerning whether: