New South Wales Supreme Court CITATION : Proactive Management Specialists Pty Ltd v Over Fifty Funds Capital Ltd [2007] NSWSC 1461 HEARING DATE(S) : 11 December 2007 JUDGMENT DATE : 11 December 2007 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Averment of readiness and willingness to perform in statement of claim for specific performance not necessary. Defendants granted leave to amend defence. CATCHWORDS : EQUITY [400] – Equitable remedies – Specific performance – Defences – From conduct of parties – Absence of readiness and willingness – Averment and proof of – Whether averment necessary in statement of claim for specific performance – Whether necessity for averment removed by UCPR r 14.11. LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Part 14 rr 14.11(d), 14.14 & 14.20 Dalswinton Pastoral Company Pty Limited v Cole [2006] NSWSC 570 CASES CITED : May v Chidley [1894] 1 QB 451 Mehmet v Benson (1965) 113 CLR 265 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Proactive Management Specialists Pty Ltd (P1) Larvine Pty Ltd (P2) Ricvale Holdings Pty Ltd (P3) Galewood Pty Ltd (P4) Konstan (Administration) Pty Ltd (P5) PARTIES : Tony Rallis (P6) Nickie Rallis (P7) Simon Konstantinidis (P8) Vicki Konstantinidis (P9) Over Fifty Funds Capital Limited (D1) Blueprint Property Developments Pty Ltd (D2) Over 50s Mutual Friendly Society Limited (D3) FILE NUMBER(S) : SC 1581/07 M K Condon & L J Reid (P) COUNSEL : M J Dawson (D1 & 3) No appearance (D2) J S Pinto & Co Solicitors (P) SOLICITORS : TressCox Lawyers (D1 & 3) John Dowling Solicitor (D2) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J TUESDAY, 11 DECEMBER 2007 1581/07 PROACTIVE MANAGEMENT SPECIALISTS PTY LTD & ORS v OVER FIFTY FUNDS CAPITAL LIMITED & ORS JUDGMENT - see T62 1 HIS HONOUR: Long argument has occurred on the question of whether or not the plaintiffs' readiness, willingness and ability to complete the relevant contract or contracts is in issue in these proceedings. 2 I adhere to the view that I expressed in Dalswinton Pastoral Company Pty Limited v Cole [2006] NSWSC 570 that the need for an express averment of readiness and willingness in specific performance cases is removed by r 14.11(d) of the Uniform Civil Procedure Rules 2005 ("the UCPR"). 3 Both the current standard practice books suggest that the appropriate course where those matters are to be put in issue is for the defendant specifically to deny the implied averment of readiness and willingness in its defence and for the plaintiff then to make the express averment in its reply, this course not affecting the ultimate onus of proof of the matter. 4 The defendants have submitted that, because of what was said by Windeyer J in Mehmet v Benson (1965) 113 CLR 265 at 314 - 315, the averment of readiness and willingness in specific performance suits is not to be taken as encompassed by r 14.11(d) and their specific averment is still necessary, as being matters that are not conditions precedent, but an integral part of the cause of action: see May v Chidley [1894] 1 QB 451. 5 It is also my view that that submission is wrong. There was no rule such as r 14.11(d) in New South Wales at the time that Mehmet v Benson was decided, and I do not regard the operation which I regard r 14.11(d) as having as prevented or overcome by what Windeyer J said, great as is my respect for that learned Judge. 6 The defendant also submitted that the very general denial of entitlement to specific performance in par 14 of the amended defence was sufficient to traverse the implied averment of readiness and willingness. I reject that submission. It is against the whole spirit of the requirements of particularity expressed and implied in Part 14 of the UCPR: see, for instance, r 14.14 and r 14.20. 7 It was said by Mr Coles, of Queen's Counsel for the defendants, that anybody reading par 14 would understand that the implied averments were traversed. All I can say is that such a thing would not occur to me nor, I think, to any reasonable reader. 8 In the light of these rulings on my part, Mr Coles now applies on behalf of the defendants for leave further to amend the amended defence to include a traverse of the implied averment. The plaintiffs have already put on a deal of evidence going to their readiness, willingness and ability to perform, although a deal of it is objected to as a matter of form. Furthermore, it is quite apparent that the trial of these proceedings is not going to conclude nor, indeed, is the evidence likely to close during the three days assigned for the case this week. The trial will have to continue at some suitable time next year, so that there will be ample time for the plaintiff to amplify its evidence in this regard. 9 In these circumstances, on the established principles flowing from the decision of the High Court in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the application in my view must be granted and the trial will proceed on the basis of that amendment and the inclusion in an appropriate reply by the plaintiffs of the express averment of readiness, willingness and ability. 10 This argument went to the admissibility or was raised by objections to the admissibility of pars 36 and 49 of the affidavit of Mr Konstantinidis of 21 February 2007; pars 4, 6 and 7 of the affidavit of Mr Konstantinidis of 24 May 2007; and par 15 of the affidavit of Mr Rallis of 28 May 2007. I shall now revisit the objections to those paragraphs on the grounds that their subject matter will be relevant. 11 The defendants are granted leave further to amend the amended defence to the effect I have set out above. 12 Costs of the amendment will be reserved. The plaintiffs should be at liberty, if the amendment is made and the allegation to be raised by the defendants proves insubstantial, as Mr Murr, of Senior Counsel for the plaintiffs, alleges that it is, the costs both of the application and of any extension of the trial may be dealt with accordingly, whatever the general result of the trial. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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