John Frederick Hillam v Leduva Pty Limited [No. 3] [2011] NSWSC 345

John Frederick Hillam v Leduva Pty Limited [No. 3] [2011] NSWSC 345

Because the Court was no longer prepared to decree specific performance and Mr Hillam remained in breach of his obligation to pay $750,000, there was no basis to continue relief against forfeiture of possession or the stay except for a short further period to allow him to find alternative accommodation. Leduva, as the successful party, was entitled to ordinary costs, while indemnity costs should be deferred because the relevant matters overlapped with possible contempt issues. The $140,000 judgment and possession-proceeding costs order based on penalty provisions should be set aside.

Jurisdiction
Australia
Judgment Date
27 April 2011
Procedural Posture
Equity Proceedings Concerning Specific Performance, Relief Against Forfeiture and Possession of Property / Consequential Orders Following Earlier Judgments
Outcome
Orders made dismissing the specific performance-related relief, setting aside the $140,000 judgment and costs order in the possession proceedings, continuing the stay until 25 May 2011, giving directions for occupation fee and undertaking issues, ordering ordinary costs for Leduva, and granting liberty to apply...
Legal Topics
['specific Performance' 'relief Against Forfeiture' 'stay of Writ for Possession' 'occupation Fees' 'contempt of Court' 'indemnity Costs' 'penalty Clauses']
['equity' 'civil Procedure' 'property' 'costs'] ['specific Performance' 'relief Against Forfeiture' 'stay of Writ for Possession' 'occupation Fees' 'contempt of Court' 'indemnity Costs' 'penalty Clauses']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Specific Performance, Relief Against Forfeiture and Possession of Property / Consequential Orders Following Earlier Judgments

Legal Issues

  1. 1 ['Whether the stay imposed by Schmidt J on 31 August 2010 on the issue of the writ of possession should continue and, if so, for how long.' "Whether Leduva proposed to bring proceedings for contempt concerning CFM's undertaking, Exhibit P." 'Whether Leduva could claim arrears of occupation fees.' 'Whether Leduva was entitled to costs of the application before Hall J in January 2011.' 'Whether Leduva was entitled to indemnity costs of the proceedings.' 'Whether orders entered for $140,000 and costs in the possession proceedings should be set aside as penalties.']

Ratio Decidendi

Because the Court was no longer prepared to decree specific performance and Mr Hillam remained in breach of his obligation to pay $750,000, there was no basis to continue relief against forfeiture of possession or the stay except for a short further period to allow him to find alternative accommodation. Leduva, as the successful party, was entitled to ordinary costs, while indemnity costs should be deferred because the relevant matters overlapped with possible contempt issues. The $140,000 judgment and possession-proceeding costs order based on penalty provisions should be set aside.

Court Disposition

Orders made dismissing the specific performance-related relief, setting aside the $140,000 judgment and costs order in the possession proceedings, continuing the stay until 25 May 2011, giving directions for occupation fee and undertaking issues, ordering ordinary costs for Leduva, and granting liberty to apply...

Orders

  • ['Dismiss orders 1,2,3,4,5 and 6 of the relief sought in the Statement of Claim in these proceedings;' 'Dismiss orders 7,8,9,10,11,12 of the orders sought in the Statement of Claim;' 'Set aside the judgment for $140,000 in the possession proceedings (being proceedings numbered 295808/2009 in the common law division)...