Kempston Holdings v Harper Macrae & Associates [2010] NSWSC 105

Kempston Holdings v Harper Macrae & Associates [2010] NSWSC 105

The plaintiffs were not entitled to summary judgment because the defendants had an arguable defence: clause 5.2 was arguably ambiguous and its construction might require evidence of surrounding circumstances. There was also no evidence that the plans were sufficiently complete to identify the exact work to be specifically performed, and the work would have to be carried out by the vendors while the purchasers were in possession of the hotel. The matter therefore raised real questions to be tried and was not amenable to summary judgment.

Jurisdiction
Australia
Judgment Date
02 March 2010
Procedural Posture
Application for Summary Judgment in Contract Proceedings Seeking Specific Performance and Damages Concerning Building Works in a Hotel / Plaintiffs' Notice of Motion Filed 9 November 2009
Outcome
Plaintiffs' notice of motion for summary judgment dismissed; parties ordered to attend mediation; plaintiffs ordered to pay defendants' costs.
Legal Topics
['summary Judgment' 'specific Performance' 'building Works' 'contract Construction' 'ambiguous Contractual Terms' 'reduced Rent Clauses' 'liquidated Damages']
['contracts' 'civil Procedure' 'equity'] ['summary Judgment' 'specific Performance' 'building Works' 'contract Construction' 'ambiguous Contractual Terms' 'reduced Rent Clauses' 'liquidated Damages']

Case Brief

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Procedural Posture

Application for Summary Judgment in Contract Proceedings Seeking Specific Performance and Damages Concerning Building Works in a Hotel / Plaintiffs' Notice of Motion Filed 9 November 2009

Legal Issues

  1. 1 ['Whether the plaintiffs were entitled to summary judgment for specific performance requiring the defendants to complete building works under the Contract for Sale of Business made on 27 May 2008.' 'Whether, in the alternative, the plaintiffs were entitled to summary judgment for specific performance of ground floor renovations and a declaration allowing access to moneys held under a National Australia Bank bank guarantee.' 'Whether the plaintiffs were entitled to summary judgment for damages to be assessed.' 'Whether clause 5.2 of the contract was ambiguous and raised a real question to be tried about the consequences of non-completion of the works.']

Ratio Decidendi

The plaintiffs were not entitled to summary judgment because the defendants had an arguable defence: clause 5.2 was arguably ambiguous and its construction might require evidence of surrounding circumstances. There was also no evidence that the plans were sufficiently complete to identify the exact work to be specifically performed, and the work would have to be carried out by the vendors while the purchasers were in possession of the hotel. The matter therefore raised real questions to be tried and was not amenable to summary judgment.

Court Disposition

Plaintiffs' notice of motion for summary judgment dismissed; parties ordered to attend mediation; plaintiffs ordered to pay defendants' costs.

Orders

  • ["The plaintiffs' notice of motion filed 9 November 2009 is dismissed." 'That the parties attend mediation.' 'The matter is listed for a status conference before the Registrar at 9.00 am on 18 March 2010.' "The plaintiffs are to pay the defendants' costs as agreed or assessed. The order for costs is effective after...