Marcolongo & Anor v Mazoudier [2008] NSWSC 1403

New South Wales Supreme Court

CITATION : Marcolongo & Anor v Mazoudier [2008] NSWSC 1403

HEARING DATE(S) : 28 November 2008

JUDGMENT DATE : 24 December 2008

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Application for charging order dismissed.

CATCHWORDS : SPECIFIC PERFORMANCE – ENFORCEMENT – CHARGING ORDER – Whether a charging order against a purchaser's other property may be obtained under s 126 Civil Procedure Act as a means of enforcing an order that the purchaser specifically perform a contract for the sale of land.

LEGISLATION CITED : Civil Procedure Act 2005 (NSW) – s 126 Judgment Creditors' Remedies Act 1901 (NSW) – s 27

CATEGORY : Procedural and other rulings

- Cahill v Howe [1986] VR 630 CASES CITED : - Laird v Pim (1841) 7 M&W 474 [171 ER 852] - Noble v Edwards (1877) LR 5 ChD 378

TEXTS CITED : - CCH "NSW Conveyancing Law Commentary", para 24-595 - Stonham "The Law of Vendor and Purchaser" (1964) para 1833

Claudio Paul Marcolongo (First Plaintiff) PARTIES : Diane Mary Kathleen Marcolongo (Second Plaintiff) Mitchell Walter Mazoudier (Defendant)

FILE NUMBER(S) : SC 1901/08

COUNSEL : M.W. Sneddon (Plaintiffs) M. Mathas (Sol) (Defendant)

SOLICITORS : Dunstan Legal (Plaintiffs) Deacons (Defendant)

1901/08 Marcolongo & Anor v Mazoudier

JUDGMENT

24 December, 2008

1 The Plaintiffs, by their Notice of Motion, sought an order under s 126 Civil Procedure Act 2005 (NSW) ("CPA") charging specified real and personal property of the Defendant in aid of an order for specific performance by the Defendant of a contract for sale of land. The application came before me on 28 November 2008 in the Duty Judge List. Having heard the submissions of Counsel for the Plaintiffs, Mr Sneddon, I refused the application and said that I would publish my reasons later. These are my reasons. 2 The Plaintiffs, as vendors, entered into a contract with the Defendant, as purchaser, for the sale of certain land. The Defendant failed to complete the contract according to its terms. The Plaintiffs commenced a suit for specific performance of the contract. On 2 May 2008, Brereton J made the following orders by consent: "2(a) The Court orders that the defendant specifically performs the contract between the parties dated 28th September 2007;