Gillespie v Wolseley Investments Pty Ltd (costs) [2007] NSWSC 369

New South Wales Supreme Court

CITATION : Gillespie v Wolseley Investments Pty Ltd (costs) [2007] NSWSC 369

HEARING DATE(S) : 14 March 2007 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 14 March 2007

DECISION : Defendant to pay plaintiff's costs

CATCHWORDS : COSTS – Specific performance – decree obtained in absence of proof of breach or apprehended breach – whether plaintiff should be allowed costs – where decree was opposed – insufficient reason to deprive successful plaintiff of costs

CASES CITED : Gillespie v Wolseley Investments Pty Ltd [2007] NSWSC 189 Marks v Lilley [1959] 1 WLR 749

PARTIES : Patricia Maria Gillespie (plaintiff) Wolseley Investments Pty Limited (defendant)

FILE NUMBER(S) : SC 6374/05

COUNSEL : J B Whittle SC (plaintiff) J-J T Loofs (defendant)

SOLICITORS : Clinch Neville Long (plaintiff) Burridge & Legg (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Wednesday, 14 March 2007

6374/05 Patricia Maria Gillespie v Wolseley Investments Pty Limited JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff succeeded in obtaining a decree for specific performance, which is the whole of the relief it sought in the proceedings. It did so, not on the basis of proving any actual or reasonably apprehended breach of the contract, but, as I concluded, because a right to specific performance accrued from the making of a contract of the type which equity would specifically enforce, regardless of whether there is a breach or apprehended breach. 2 The present question is whether there is sufficient reason to deprive the successful plaintiff of its costs of the proceedings. There being no breach proven and no reasonable apprehension of a breach established, it might be said on one view that the proceedings were not necessary. However, the plaintiff was entitled to a decree of specific performance once a specifically enforceable contract was made, and the defendant opposed the plaintiff having that decree. Moreover, the defendant put in issue in its pleadings the enforceability of the contract, or at least that part of it which required consent of the Council to be obtained or co-operation in the obtaining of such a consent. 3 While that defence was not pressed at the hearing, it reinforces the view that, while asserting in correspondence that it agreed that, subject to the Council's approval being granted, the contract should be specifically performed, it at all times resisted the decree, to which I have found the plaintiff was entitled. Thus although the plaintiff did not establish breach or apprehended breach, it established an entitlement which it had from the inception of the proceedings and which the defendant disputed. 4 While the proceedings might be seen by some as unnecessary, I do not regard it as unnecessary for a party to vindicate its entitlement to a decree for specific performance. What was unnecessary was opposition to that course. 5 In my view, there are insufficient reasons for departing from the general rule. As I foreshadowed in my principal judgment, and as Mr Loofs conceded in his written submissions, the course that I propose to take in that respect is favoured by the judgment of Vaisey J in Marks v Lilley [1959] 1 WLR 749. The costs order contained in paragraph 7 of the orders pronounced on 9 March 2007 will, therefore, stand.