John Frederick Hillam v Leduva Pty Limited (No. 2) [2011] NSWSC 247

John Frederick Hillam v Leduva Pty Limited (No. 2) [2011] NSWSC 247

Leave to re-open was granted because the post-judgment Federal Court orders, repayment of the Holman Webb trust funds to Bonython, and withdrawal of CFM's undertaking were credible fresh evidence that could not reasonably have been obtained for use at trial and had a high probability of affecting the result. Once that evidence was considered, the undertaking and trust funds that had been essential to the earlier finding of readiness, willingness and ability were no longer available. Mr Hillam did not demonstrate access to funds sufficient to complete within the likely period for specific performance, so the Court could no longer find him ready, willing and able to complete and refused...

Jurisdiction
Australia
Judgment Date
31 March 2011
Procedural Posture
Application for Leave to Re Open and Variation or Setting Aside of Judgment Concerning Specific Performance of a Contract for Sale of Land / After Reasons for Judgment Delivered But Before Orders Entered
Outcome
Leave to re-open granted; specific performance refused; claims for specific performance dismissed; costs, damages claimed by Leduva, and consequences of CFM's undertaking reserved.
Legal Topics
['leave to Re Open' 'variation or Setting Aside of Judgment Before Entry' 'specific Performance' 'readiness, Willingness and Ability to Complete Contract for Sale of Land' 'undertaking to the Court']
['civil Procedure' 'equity' 'property Law'] ['leave to Re Open' 'variation or Setting Aside of Judgment Before Entry' 'specific Performance' 'readiness, Willingness and Ability to Complete Contract for Sale of Land' 'undertaking to the Court']

Case Brief

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Procedural Posture

Application for Leave to Re Open and Variation or Setting Aside of Judgment Concerning Specific Performance of a Contract for Sale of Land / After Reasons for Judgment Delivered But Before Orders Entered

Legal Issues

  1. 1 ['Whether Leduva should be granted leave to re-open its case after judgment had been given but before orders were entered.' 'Whether, if leave to re-open were granted, the Court should vary the relief proposed in the principal judgment under Uniform Civil Procedure Rules 2005, r 36.16.' "Whether Mr Hillam remained ready, willing and able to complete the contract for sale of the Alexandria apartment after CFM's undertaking was withdrawn and funds in Holman Webb's trust account were repaid to Bonython."]

Ratio Decidendi

Leave to re-open was granted because the post-judgment Federal Court orders, repayment of the Holman Webb trust funds to Bonython, and withdrawal of CFM's undertaking were credible fresh evidence that could not reasonably have been obtained for use at trial and had a high probability of affecting the result. Once that evidence was considered, the undertaking and trust funds that had been essential to the earlier finding of readiness, willingness and ability were no longer available. Mr Hillam did not demonstrate access to funds sufficient to complete within the likely period for specific performance, so the Court could no longer find him ready, willing and able to complete and refused...

Court Disposition

Leave to re-open granted; specific performance refused; claims for specific performance dismissed; costs, damages claimed by Leduva, and consequences of CFM's undertaking reserved.

Orders

  • ['Dismiss Orders 1, 2, 3, 4, 5 and 6 of the relief sought in the Statement of Claim.' 'Direct each party to provide to the Court by 8 April 2010 draft short minutes of the orders that the party proposes for the disposal of the balance of the relief sought (i) by the plaintiff in the Statement of Claim and (ii) by...