AMP Capital Investors Limited v Willis Australia Limited (No.2) [2022] NSWSC 1552

AMP Capital Investors Limited v Willis Australia Limited (No.2) [2022] NSWSC 1552

Mirvac should be added as second plaintiff rather than substituted for AMP because that course avoided possible costs-assessment issues and no conflict of interest was suggested. Willis' opposition to the bank guarantee order misconceived the earlier reasons: AMP waived only the timely provision of the guarantee, not the security of a guarantee. Although the amended statement of claim did not specifically seek rent from 1 October 2020, that relief fell within the pleaded request for orders required to implement specific performance, Willis showed no prejudice, and interest could be ordered under s 100 because the order for specific performance required payment of money.

Jurisdiction
Australia
Judgment Date
11 November 2022
Procedural Posture
Consequential Orders in Equity Real Property List / On the Papers Following Reasons of 19 October 2022
Outcome
Mirvac Funds Management Australia Limited was joined as second plaintiff; declarations were made concerning the lease option and agreement to lease; specific performance was ordered; the cross claim was dismissed; Willis was ordered to pay the plaintiffs' costs; liberty to apply was granted.
Legal Topics
['consequential Orders' 'specific Performance' 'lease Option' 'joinder of Party' 'bank Guarantee' 'market Rent Review' 'interest Under S 100 of the Civil Procedure Act 2005 (nsw)' 'costs' 'cross Claim']
['real Property' 'equity' 'civil Procedure'] ['consequential Orders' 'specific Performance' 'lease Option' 'joinder of Party' 'bank Guarantee' 'market Rent Review' 'interest Under S 100 of the Civil Procedure Act 2005 (nsw)' 'costs' 'cross Claim']

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Procedural Posture

Consequential Orders in Equity Real Property List / On the Papers Following Reasons of 19 October 2022

Legal Issues

  1. 1 ['Whether Mirvac Funds Management Australia Limited should be joined as a second plaintiff or substituted for AMP Capital Investors Limited after AMP retired as trustee and Mirvac became the new trustee and legal owner of the Premises and Expanded Premises.' 'Whether the order for specific performance should require Willis Australia Limited to provide a bank guarantee after completion of the market review.' 'Whether the order for specific performance should require Willis Australia Limited to pay the New Base Rent and Outgoings Contribution plus GST from 1 October 2020 and interest under s 100 of the Civil Procedure Act 2005 (NSW).' 'What consequential declarations and orders should be made to give effect to the reasons of 19 October 2022.']

Ratio Decidendi

Mirvac should be added as second plaintiff rather than substituted for AMP because that course avoided possible costs-assessment issues and no conflict of interest was suggested. Willis' opposition to the bank guarantee order misconceived the earlier reasons: AMP waived only the timely provision of the guarantee, not the security of a guarantee. Although the amended statement of claim did not specifically seek rent from 1 October 2020, that relief fell within the pleaded request for orders required to implement specific performance, Willis showed no prejudice, and interest could be ordered under s 100 because the order for specific performance required payment of money.

Court Disposition

Mirvac Funds Management Australia Limited was joined as second plaintiff; declarations were made concerning the lease option and agreement to lease; specific performance was ordered; the cross claim was dismissed; Willis was ordered to pay the plaintiffs' costs; liberty to apply was granted.

Orders

  • ['Orders, pursuant to rule 6.24(1) of the Uniform Civil Procedure Rules 2005 (NSW), that Mirvac Funds Management Australia Limited ACN 653 080 463 be joined as the second plaintiff and that AMP Capital Investors Limited be named hereafter as the first plaintiff.' 'Declares that clauses 20.3 and 20.4 of Annexure A to...