NSW Caselaw
New South Wales Supreme Court
CITATION : Gillespie v Wolseley Investments Pty Ltd [2007] NSWSC 189
HEARING DATE(S) : 2 February 2007
JUDGMENT DATE : 9 March 2007
JURISDICTION : Equity Division
JUDGMENT OF : Brereton J
DECISION : Declare that agreement ought to be specifically performed and carried into execution, and that to that end the defendant was and is bound to use best endeavours to secure development consent and, when requested, to sign all authorities and do all things necessary to obtain consent; Order that defendant use best endeavours to secure consent and, when requested, sign all authorities and do all things necessary to obtain consent; Order that upon consent being granted, Deed be specifically performed and carried into execution; Liberty to apply including for further directions to implement order for specific performance, and in the event that within a reasonable time consent not granted, for such order as may appear just; Order that defendant pay plaintiff's costs.
CATCHWORDS : EQUITY – Specific performance – circumstances in which specific performance will be ordered before any breach of contract – where contract for sale of share in home unit company is conditional on development approval - when equitable right to specific performance accrues – held, right accrues on making of contract
LEGISLATION CITED : Environmental Planning & Assessment Act 1979 (NSW), ss 82A, 106
Bass v Clivley (1829) 48 ER 33 Brown v Heffer (1967) 116 CLR 344 Butts v O'Dwyer (1952) 87 CLR 267 Egan v Ross (1928) 29 SR(NSW) 382 Hasham v Zenab [1960] AC 316 Hunt v Blacktown City Council (1999) 107 LGERA 156 Hunt v Blacktown City Council [2001] NSWCA 216 CASES CITED : Kennedy v Vercoe (1960) 105 CLR 521 Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851 Marks v Lilley [1959] 1 WLR 749 Turner v Bladin (1951) 82 CLR 463 Woolworths Ltd v Dubbo City Council (1997) 99 LGERA 334 Snell, Snell's Principles of Equity, 25th ed. Spry, Equitable Remedies, 5th ed. Williams, Contract of Sale of Land Meagher, Heydon & Leeming, Equity Doctrines & Remedies, 4th ed.
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