Taylor Square TT Pty Ltd v Kinselas Pty Ltd [2024] NSWSC 799

Taylor Square TT Pty Ltd v Kinselas Pty Ltd [2024] NSWSC 799

The Court declined to make an order for specific performance against the guarantor at the same time as against the principal obligors because, on construction of the guarantee, the guarantor's obligations were not concurrent or direct but contingent upon default by the principal obligors. Equity does not grant specific performance for payment of money where damages suffice and the text of the guarantee did not warrant concurrent or direct liability. The case against the guarantor was, at this point, premature.

Parties
First Plaintiff: Taylor Square TT Pty Ltd; Second Plaintiff: Taylor Square Fund Pty Ltd; First Defendant: Kinselas Pty Ltd; Second Defendant: Kinselas Management Pty Ltd; Third Defendant: The Courthouse (NSW) Pty Ltd; Fourth Defendant: The Courthouse Management Pty Ltd; Fifth Defendant: Mark Toma
Jurisdiction
Australia
Judgment Date
28 June 2024
Procedural Posture
Specific Performance Contract for Sale of Land/business / Interlocutory Application for Orders for Specific Performance Against Guarantor, Adjournment Pending Compliance by Principal Obligors
Outcome
Adjourned
Legal Topics
Specific Performance, Guarantee, Sale of Land, Sale of Business, Remedies for Breach of Contract
Equity Contracts Specific Performance Guarantee Sale of Land Sale of Business Remedies for Breach of Contract

Case Brief

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Parties

Taylor Square TT Pty Ltd

First Plaintiff

Taylor Square Fund Pty Ltd

Second Plaintiff

Kinselas Pty Ltd

First Defendant

Kinselas Management Pty Ltd

Second Defendant

The Courthouse (NSW) Pty Ltd

Third Defendant

The Courthouse Management Pty Ltd

Fourth Defendant

Mark Toma

Fifth Defendant

Procedural Posture

Specific Performance Contract for Sale of Land/business / Interlocutory Application for Orders for Specific Performance Against Guarantor, Adjournment Pending Compliance by Principal Obligors

Legal Issues

  1. 1 Whether specific performance should be ordered against the guarantor (Mark Toma) contemporaneously with or prior to the time for specific performance by the principal obligors (corporate purchasers)
  2. 2 Whether the guarantee clause creates a concurrent liability or direct liability to vendors, justifying specific performance as against guarantor
  3. 3 Whether specific performance is an appropriate remedy for the unpaid instalment of the deposit

Ratio Decidendi

The Court declined to make an order for specific performance against the guarantor at the same time as against the principal obligors because, on construction of the guarantee, the guarantor's obligations were not concurrent or direct but contingent upon default by the principal obligors. Equity does not grant specific performance for payment of money where damages suffice and the text of the guarantee did not warrant concurrent or direct liability. The case against the guarantor was, at this point, premature.

Court Disposition

Adjourned

Orders

  • Proceedings stood over to 9.30 am on 12 July 2024.