Exotic Retirement Living v Construct By Design Commercial [2018] NSWSC 860

Exotic Retirement Living v Construct By Design Commercial [2018] NSWSC 860

The deed did not operate to transfer any right, title or interest in the car stacker because, when it was made, CBD had no right, title or interest in the car stacker and cl 2.2 was expressed only as a present assignment, not as an assignment of future or after-acquired property. Even if cl 2.2 were construed as an assignment of future property, it would not be specifically enforceable in equity because the consideration had not been paid or executed in full, including invoices issued by CSI associated with the car stacker that CBD had paid and ERL had not paid. ERL therefore had no present interest or benefit entitling it to possession or delivery up.

Jurisdiction
Australia
Judgment Date
06 June 2018
Procedural Posture
Equity Commercial List Proceeding Seeking Declaratory Relief and Delivery Up of a Car Stacker / Principal Judgment on Amended Summons
Outcome
Amended summons dismissed; costs reserved.
Legal Topics
['assignment' 'assignment of Future Property' 'construction of Deed' 'retention of Title' 'specific Performance']
['contract' 'equity'] ['assignment' 'assignment of Future Property' 'construction of Deed' 'retention of Title' 'specific Performance']

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Procedural Posture

Equity Commercial List Proceeding Seeking Declaratory Relief and Delivery Up of a Car Stacker / Principal Judgment on Amended Summons

Legal Issues

  1. 1 ["Whether the Assignment and Benefit Deed assigned CBD's rights, title and interest in the car stacker to ERL." 'Whether clause 2.2 of the deed should be construed as an agreement to assign future property or after-acquired property.' 'Whether any equitable assignment of future property was enforceable where the consideration had not been paid or executed in full.' "Whether CSI's non-joinder affected the relief sought as between ERL and CBD."]

Ratio Decidendi

The deed did not operate to transfer any right, title or interest in the car stacker because, when it was made, CBD had no right, title or interest in the car stacker and cl 2.2 was expressed only as a present assignment, not as an assignment of future or after-acquired property. Even if cl 2.2 were construed as an assignment of future property, it would not be specifically enforceable in equity because the consideration had not been paid or executed in full, including invoices issued by CSI associated with the car stacker that CBD had paid and ERL had not paid. ERL therefore had no present interest or benefit entitling it to possession or delivery up.

Court Disposition

Amended summons dismissed; costs reserved.

Orders

  • ['Dismiss amended summons.' 'Reserve costs.']