Yapp v Pollak [2019] NSWSC 449

Supreme Court New South Wales

Medium Neutral Citation: Yapp v Pollak [2019] NSWSC 449 Hearing dates: 10 April 2019 Date of orders: 24 April 2019 Decision date: 24 April 2019 Jurisdiction: Equity Before: Darke J Decision: Orders made for specific performance of contract for sale of land. Catchwords: LAND LAW – contract for sale of land – claim by vendor for specific performance – construction – special condition in contract stipulated that the vendor agrees to replace lower staircase in the property in accordance with a Development Approval prior to settlement – special condition further stipulated that "the vendor warrants that all Development Consent Conditions will be satisfied on or before completion" and will provide an occupation certificate prior to settlement – where not all works permitted by Development Approval had been carried out – whether special condition required the vendor to complete all the works the subject of the Development Approval – special condition held to require only the replacement of lower staircase and provision of an occupation certificate in respect of that work – vendor held to have complied with special condition – specific performance ordered Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 109H Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), cl 18 Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342 Jireh International Pty Ltd t/as Gloria Jean's Coffee v Western Exports Services Inc [2011] NSWCA 137 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 Miwa Pty Ltd v Siantan Properties Pte Ltd (2011) 15 BPR 29,545; [2011] NSWCA 297 Teele v Federal Commissioner of Taxation (1940) 63 CLR 201 Category: Principal judgment Parties: Ian Martin Yapp (First Plaintiff/First Cross Defendant) George Orena (Second Plaintiff/Second Cross Defendant) Joseph Pollak (Defendant/Cross Claimant) Representation: Counsel: Mr B A Coles QC with Mr P B Walsh (Plaintiffs/Cross Defendants) Mr G Farland (Defendant/Cross Claimant)