Appleby v Nellis [2009] NSWSC 299

New South Wales Supreme Court

CITATION : Appleby v Nellis [2009] NSWSC 299

HEARING DATE(S) : 15/04/09

JUDGMENT DATE : 15 April 2009

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 15 April 2009

DECISION : Refer to para 15 of judgment.

CATCHWORDS : PROCEDURE - judgments and orders - enforcement of judgments and orders - application for judgment to be stayed - application dismissed

LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999 (NSW)

CATEGORY : Procedural and other rulings

Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd (No. 2) [2007] NSWSC 592 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 CASES CITED : Tanning Research Laboratories Incorporated v O'Brien [1990] HCA 8; (1990) 169 CLR 332 Isaacs v Ocean Accident & Guarantee Corp Ltd & Winslett (195) SR (NSW) 69 Grosvenor Constructions (NSW) Pty Ltd (in admin) v Musico & Ors [2004] NSWSC 344

Paul Andrew Appleby PARTIES : v Jennifer Nellis

FILE NUMBER(S) : SC 4325/08

COUNSEL : Applicant/Defendant: P Carlisle (sol'r) Respondent/Plaintiff: G Sirtes SC

SOLICITORS : Applicant: Kalfus Legal Respondent: Cara Marasco & Company

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

WHITE J

Wednesday, 15 April 2009

4325/08 Paul Andrew Appleby v Jennifer Nellis JUDGMENT 1 HIS HONOUR: The defendant and judgment debtor seeks an order: "that the operation and enforcement of the Judgment entered by the Plaintiff/Judgment Creditor against the Defendant/Judgment debtor be stayed". The judgment in question was given on 28 November 2008. Judgment was given for the plaintiff in the sum of $700,000. The defendant was ordered to pay the plaintiff's costs of the proceedings. The judgment was by consent. 2 The proceedings were commenced on 21 August 2008. The plaintiff sought an order for specific performance of a contract for the sale of property known as 78 Bower Street, Manly. The contract was entered into by the plaintiff as vendor and the defendant as purchaser. The defence to that claim consisted largely of non-admissions. The only specific defence was that the Court, in its discretion, would not order specific performance of the contract, as such an order would be futile because the plaintiff did not have the means to complete the contract. In support of the defence the defendant swore an affidavit on 18 September 2008. She deposed to having inspected the property and having had a conversation with the estate agent, a Mr Anthony Walls, in which she and her husband were invited to make an offer. She deposed that the agent said: " Why don't you sign a contract and give me a deposit and I will see what I can do for you. "