Wolseley Investments Pty Ltd v Gillespie [2007] NSWCA 358

Reported Decision: (2008) NSW Conv R 56-206(2008) ANZ Conv R 8-02

New South Wales Court of Appeal

CITATION: Wolseley Investments Pty Ltd v Gillespie [2007] NSWCA 358

HEARING DATE(S): 30 November 2007

JUDGMENT DATE: 12 December 2007

JUDGMENT OF: Santow JA at 1; Ipp JA at 86; Tobias JA at 87

DECISION: (1) Appeal allowed; (2) The respondent's Statement of Claim be dismissed; (3) The respondent to pay the appellant's costs of the proceedings below and of the appeal but with respect to the latter to have a certificate under the Suitor's Fund Act 1951, if otherwise qualified

CATCHWORDS: EQUITY – availability of degree of specific performance where primary judge concludes that defendant had neither committed a contractual breach nor so conducted itself as to give rise to its reasonable apprehension – whether costs should be awarded against party unsuccessfully opposing specific performance in such circumstances – body corporate in a home unit building contracted with apartment owner to lodge development application with council with all due despatch and to use best endeavours to secure development consent from council for creation of extra apartment in attic - WORDS AND PHRASES – "all due despatch" – "best endeavours"

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000

Bass v Clivley (1829) 48 ER 33 Hasham v Zenab [1960] AC 316; [1960] 2 WLR 374 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 CASES CITED: Marks v Lilley [1959] 2 All ER 647; [1959] 1 WLR 749 Turner v Bladin (1951) 82 CLR 463 Urban Traders Pty Ltd v Proceris Pty Ltd and Others (2005) 12 BPR 23,319; [2005] NSWSC 1192 Waters Lane & Anor v Sweeney & Ors [2007] NSWCA 200