ADDERTON v. WINDY DROPDOWN [2001] NSWSC 410

ADDERTON v. WINDY DROPDOWN [2001] NSWSC 410

The vendor had not complied with Special Condition 37 because the tiled car-parking area encroached on both easements and the required release and clear consent from Sydney Water had not been obtained and evidenced at least seven days before completion. The vendor was therefore not entitled to give a Notice to Complete or threaten termination and resale, and its conduct was wrong and unreasonable. The purchaser was practically compelled to commence proceedings and seek an interim injunction. Although the sale later settled, the plaintiff's position was overwhelmingly strong and the defendant capitulated, so the usual no-costs approach for compromised proceedings did not apply. The...

Jurisdiction
Australia
Judgment Date
23 May 2001
Procedural Posture
Costs Determination in Equity Division Proceedings Arising From a Contract for Sale, Claimed Specific Performance and Interim Injunctive Relief / After the Sale Settled Without Judicial Disposition and the Parties Reserved and Applied for Costs
Outcome
The plaintiff succeeded on the costs application; the defendant was ordered to pay the plaintiff's costs on the indemnity basis.
Legal Topics
['vendor and Purchaser' 'notice to Complete' 'specific Performance' 'interim Injunction' 'easements' 'indemnity Costs' 'compromised Proceedings']
['property Law' 'contract Law' 'equity' 'civil Procedure'] ['vendor and Purchaser' 'notice to Complete' 'specific Performance' 'interim Injunction' 'easements' 'indemnity Costs' 'compromised Proceedings']

Case Brief

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Procedural Posture

Costs Determination in Equity Division Proceedings Arising From a Contract for Sale, Claimed Specific Performance and Interim Injunctive Relief / After the Sale Settled Without Judicial Disposition and the Parties Reserved and Applied for Costs

Legal Issues

  1. 1 ['Whether the defendant vendor was entitled to give a Notice to Complete and threaten termination before complying with Special Condition 37 concerning releases and consents for easement encroachments.' "Whether the plaintiff purchaser was practically compelled to commence proceedings and seek an interim injunction because of the vendor's conduct." 'Whether the usual approach of no order as to costs in compromised proceedings applied.' 'Whether costs should be awarded to the plaintiff on the indemnity basis.']

Ratio Decidendi

The vendor had not complied with Special Condition 37 because the tiled car-parking area encroached on both easements and the required release and clear consent from Sydney Water had not been obtained and evidenced at least seven days before completion. The vendor was therefore not entitled to give a Notice to Complete or threaten termination and resale, and its conduct was wrong and unreasonable. The purchaser was practically compelled to commence proceedings and seek an interim injunction. Although the sale later settled, the plaintiff's position was overwhelmingly strong and the defendant capitulated, so the usual no-costs approach for compromised proceedings did not apply. The...

Court Disposition

The plaintiff succeeded on the costs application; the defendant was ordered to pay the plaintiff's costs on the indemnity basis.

Orders

  • ["I order that the defendant pay the plaintiff's costs, including reserved costs, of the proceedings on the indemnity basis."]