Ryan v UPG 322 Pty Ltd [2023] NSWSC 1293

Ryan v UPG 322 Pty Ltd [2023] NSWSC 1293

Specific performance was ordered against UPG 322 because the contract was valid and binding, the purchaser was in default, the affirmative defences of hardship and futility were not pressed by evidence or submissions, and damages were not an adequate remedy for the vendor of this land. Specific performance-related relief was also available against Mr Bhushan in respect of payment because special condition 44 unconditionally guaranteed performance of all purchaser obligations, including payment of all money payable or recoverable from the purchaser, contained an indemnity, and stated that the guarantee and indemnity were given as principal. Properly construed, and in light of business...

Jurisdiction
Australia
Judgment Date
31 October 2023
Procedural Posture
Equity Expedition List; Proceedings for Specific Performance of a Contract for Sale of Land / Principal Judgment After Expedited Hearing of the Specific Performance Claim
Outcome
Plaintiff succeeded; specific performance ordered against the purchaser and, as to payment of the purchase price and settlement monies, against the guarantor jointly and severally; defendants ordered to pay the plaintiff's costs to the date of orders.
Legal Topics
['specific Performance' 'contract for Sale of Land' "vendor's Remedies" 'adequacy of Damages' 'corporate Purchaser Default' 'guarantor Liability' 'construction of Guarantee' 'quia Timet Equitable Relief' 'pexa Settlement']
['equity' 'contract Law' 'property Law' 'guarantee and Indemnity'] ['specific Performance' 'contract for Sale of Land' "vendor's Remedies" 'adequacy of Damages' 'corporate Purchaser Default' 'guarantor Liability' 'construction of Guarantee' 'quia Timet Equitable Relief' 'pexa Settlement']

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Procedural Posture

Equity Expedition List; Proceedings for Specific Performance of a Contract for Sale of Land / Principal Judgment After Expedited Hearing of the Specific Performance Claim

Legal Issues

  1. 1 ['Whether specific performance should be ordered against UPG 322 Pty Limited as purchaser under the contract for sale of land.' 'Whether damages were an adequate remedy for the vendor so as to justify refusing specific performance.' 'Whether specific performance or equivalent relief could be ordered against Mr Bhushan as guarantor in respect of payment of the purchase price.' 'Whether an order against the guarantor was premature because the purchaser had not yet failed to comply with a decree of specific performance.' 'What form of orders and settlement directions should be made.']

Ratio Decidendi

Specific performance was ordered against UPG 322 because the contract was valid and binding, the purchaser was in default, the affirmative defences of hardship and futility were not pressed by evidence or submissions, and damages were not an adequate remedy for the vendor of this land. Specific performance-related relief was also available against Mr Bhushan in respect of payment because special condition 44 unconditionally guaranteed performance of all purchaser obligations, including payment of all money payable or recoverable from the purchaser, contained an indemnity, and stated that the guarantee and indemnity were given as principal. Properly construed, and in light of business...

Court Disposition

Plaintiff succeeded; specific performance ordered against the purchaser and, as to payment of the purchase price and settlement monies, against the guarantor jointly and severally; defendants ordered to pay the plaintiff's costs to the date of orders.

Orders

  • ['Declare that the Contract dated 18th January 2023 for sale of land at [XX] Box Hill in the State of New South Wales, being the land comprised in Folio Identifier [XX] (the Property) between the Plaintiff as vendor, the First Defendant as purchaser and the Second Defendant as Guarantor (the Contract) is valid and...