Fuller v Albert (No 2) [2021] NSWCA 183

Fuller v Albert (No 2) [2021] NSWCA 183

The application to reopen the appeal is refused as the Court did not rely upon an unpleaded implied term, nor was a specific finding of breach required to remit the question of specific performance or damages. The Court's evaluation of abandonment, release, and the sufficiency of reasons met required standards, and procedural fairness was observed as parties could have made further submissions. Costs and remittal submissions are allowed to be made in writing as ordered.

Jurisdiction
Australia
Judgment Date
23 August 2021
Procedural Posture
Appeal / Procedural Ruling on Notice of Motion to Reopen Appeal
Outcome
Amended Notice of Motion otherwise dismissed with costs; oral hearing refused; Alberts have leave to file amended motion and further written costs/remitter submissions allowed per timetable.
Legal Topics
['amendment of Judgments' 'application to Reopen Appeal' 'implied Terms in Contract' 'specific Performance' 'costs Orders' 'abandonment of Contract' 'repudiation']
['civil Procedure' 'contract Law'] ['amendment of Judgments' 'application to Reopen Appeal' 'implied Terms in Contract' 'specific Performance' 'costs Orders' 'abandonment of Contract' 'repudiation']

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Procedural Posture

Appeal / Procedural Ruling on Notice of Motion to Reopen Appeal

Legal Issues

  1. 1 ['Whether the Court determined the appeal on a ground not pleaded at trial' 'Whether the Court found an ordinarily implied general obligation in contract to cooperate' 'Whether a breach of contract was or needed to be found for specific performance' 'Whether the Court gave adequate reasons for rejecting abandonment and unilateral release' 'Whether remitter to Equity Division was appropriate' 'Whether Mr Albert had an issue concerning the $175,000 payment to Matcove' 'Whether the Alberts were denied procedural fairness on costs']

Ratio Decidendi

The application to reopen the appeal is refused as the Court did not rely upon an unpleaded implied term, nor was a specific finding of breach required to remit the question of specific performance or damages. The Court's evaluation of abandonment, release, and the sufficiency of reasons met required standards, and procedural fairness was observed as parties could have made further submissions. Costs and remittal submissions are allowed to be made in writing as ordered.

Court Disposition

Amended Notice of Motion otherwise dismissed with costs; oral hearing refused; Alberts have leave to file amended motion and further written costs/remitter submissions allowed per timetable.

Orders

  • ['The Alberts have leave to file an Amended Notice of Motion in the form annexed to their written submissions.' 'The parties may file and serve written submissions (each not exceeding 2000 words in length) as to the appropriate order concerning costs of the appeal and as to whether the proceedings should now be...