Gateway Parramatta Two Pty Limited v Boyded Industries Pty Limited [2016] NSWSC 457

Gateway Parramatta Two Pty Limited v Boyded Industries Pty Limited [2016] NSWSC 457

The Court granted ex parte interlocutory relief because the purchasers established serious questions to be tried about the vendor's entitlement to terminate the Contract, including the effectiveness of the notice to complete procedure, the planning agreement deed of novation, and the GMAC charge. The balance of convenience favoured preserving the Contract because the Property was valuable and unique and damages would not be an adequate remedy, and an undertaking as to damages was offered on behalf of Mr Sam Fayad.

Jurisdiction
Australia
Judgment Date
15 April 2016
Procedural Posture
Equity Duty List Real Property/conveyancing Proceedings Concerning Sale and Purchase of Commercial Development Site / Urgent Ex Parte Application for Interlocutory Injunction to Restrain Purported Termination of the Contract
Outcome
Ex parte interlocutory injunction granted.
Legal Topics
['notice to Complete' 'interlocutory Injunction' 'specific Performance' 'sale of Land' 'readiness, Willingness and Ability to Complete' 'balance of Convenience']
['real Property' 'conveyancing' 'equity'] ['notice to Complete' 'interlocutory Injunction' 'specific Performance' 'sale of Land' 'readiness, Willingness and Ability to Complete' 'balance of Convenience']

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Procedural Posture

Equity Duty List Real Property/conveyancing Proceedings Concerning Sale and Purchase of Commercial Development Site / Urgent Ex Parte Application for Interlocutory Injunction to Restrain Purported Termination of the Contract

Legal Issues

  1. 1 ["Whether there was a serious question to be tried as to the effectiveness of the vendor's notice to complete and the purported suspension and reactivation of that notice." 'Whether there was a serious question to be tried as to whether the vendor was ready, willing and able to complete given the planning agreement deed of novation issue.' 'Whether there was a serious question to be tried as to whether the vendor could transfer the Property free of encumbrances given the GMAC charge registered on the Personal Property Securities Register.' 'Whether the balance of convenience favoured ex parte interlocutory relief restraining termination of the Contract.']

Ratio Decidendi

The Court granted ex parte interlocutory relief because the purchasers established serious questions to be tried about the vendor's entitlement to terminate the Contract, including the effectiveness of the notice to complete procedure, the planning agreement deed of novation, and the GMAC charge. The balance of convenience favoured preserving the Contract because the Property was valuable and unique and damages would not be an adequate remedy, and an undertaking as to damages was offered on behalf of Mr Sam Fayad.

Court Disposition

Ex parte interlocutory injunction granted.

Orders

  • ['Ex parte interlocutory injunction granted to restrain any purported termination of the Contract.' 'Relief granted upon the usual undertaking as to damages being given to the Court by Mr Sam Fayad.']