Proactive Management Specialists Pty Ltd v Over Fifty Funds Capital Ltd [2007] NSWSC 1461

Proactive Management Specialists Pty Ltd v Over Fifty Funds Capital Ltd [2007] NSWSC 1461

UCPR r 14.11(d) removes the need for a plaintiff seeking specific performance to include an express averment of readiness and willingness in the statement of claim. If a defendant wishes to put that implied averment in issue, it must specifically traverse it; a general denial of entitlement to specific performance is insufficient. Given the evidence already served and the fact the trial would continue later, the defendants were granted leave to amend the amended defence to add the specific traverse, with costs reserved.

Jurisdiction
Australia
Judgment Date
11 December 2007
Procedural Posture
Equity Proceedings Seeking Specific Performance / Ruling During Trial on Whether Readiness, Willingness and Ability to Complete Was in Issue and on Defendants' Application for Leave Further to Amend the Amended Defence
Outcome
Defendants granted leave further to amend the amended defence; costs of the amendment reserved.
Legal Topics
['specific Performance' 'readiness and Willingness to Perform' 'pleadings' 'amendment of Defence' 'uniform Civil Procedure Rules']
['equity' 'civil Procedure'] ['specific Performance' 'readiness and Willingness to Perform' 'pleadings' 'amendment of Defence' 'uniform Civil Procedure Rules']

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Procedural Posture

Equity Proceedings Seeking Specific Performance / Ruling During Trial on Whether Readiness, Willingness and Ability to Complete Was in Issue and on Defendants' Application for Leave Further to Amend the Amended Defence

Legal Issues

  1. 1 ['Whether an express averment of readiness and willingness to perform is necessary in a statement of claim for specific performance.' 'Whether UCPR r 14.11(d) encompasses the implied averment of readiness and willingness in specific performance proceedings.' 'Whether a general denial of entitlement to specific performance in the amended defence was sufficient to traverse the implied averment of readiness and willingness.' 'Whether the defendants should be granted leave further to amend the amended defence to traverse the implied averment.']

Ratio Decidendi

UCPR r 14.11(d) removes the need for a plaintiff seeking specific performance to include an express averment of readiness and willingness in the statement of claim. If a defendant wishes to put that implied averment in issue, it must specifically traverse it; a general denial of entitlement to specific performance is insufficient. Given the evidence already served and the fact the trial would continue later, the defendants were granted leave to amend the amended defence to add the specific traverse, with costs reserved.

Court Disposition

Defendants granted leave further to amend the amended defence; costs of the amendment reserved.

Orders

  • ['The defendants are granted leave further to amend the amended defence to traverse the implied averment of readiness, willingness and ability.' 'The trial will proceed on the basis of that amendment and the inclusion in an appropriate reply by the plaintiffs of an express averment of readiness, willingness and...