HEARSE & ANOR v PALLISTER & ORS [2009] NSWSC 807

New South Wales Supreme Court

CITATION : HEARSE & ANOR v PALLISTER & ORS [2009] NSWSC 807

HEARING DATE(S) : Thursday 7 and Friday 8 May 2009

JUDGMENT DATE : 14 August 2009

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

(1) Except as provided in paragraph (2) below, the application for orders sought in paragraphs 1, 2, 3 and 4 of the notice of motion filed on 26 February 2009 is dismissed. DECISION : (2) That the order made on 2 July 2008 and entered on 3 July 2008 dismissing the second cross-claim (order 5) be set aside. (3) The applicant/first defendant is to pay the costs of the notice of motion filed on 26 February 2009. (4) Liberty to any party to apply on short notice as to the form of orders or matters ancillary thereto.

CATCHWORDS : VENDOR – PURCHASER – Contract for Sale of Land – vendor/plaintiffs issued Notice to Complete addressed to the first and second defendants as purchasers – failure to complete purchase on specified date – notice of rescission by vendors' solicitors – proceedings by vendors for breach of hearing – no attendance by either first or second defendant at hearing – orders made against them include order for damages in favour of the plaintiff – PRACTICE and principles – applications to set aside orders – discretionary power – relevant matters – successful application by second defendant to set aside judgments and orders – subsequent application by first defendant to set aside judgments and orders – on basis of an arguable defence that Notice to Complete involved and of no effect being addressed to both first and second defendants when second defendant had made out arguable defence that she was never a party to the contract – on the application held no arguable case – principles concerning the form and efficacy of Notices to Complete considered – application to set aside judgments and orders refused but order dismissing second cross-claim by first defendant against former solicitors set aside