Dimento v Dimento & Anor [2007] NSWSC 1191

Dimento v Dimento & Anor [2007] NSWSC 1191

There was a binding and enforceable contract to convey the licences beneficially to the plaintiff and the house to the first defendant, which had not been terminated or abandoned. However, specific performance was refused because the first defendant was not beneficially entitled to the licences, and an order for specific performance would require him to act inconsistently with prior equitable (or corporate) obligations. Damages for breach of contract equivalent to the value of the licences were awarded instead.

Jurisdiction
Australia
Judgment Date
05 October 2007
Procedural Posture
Equity Proceedings / Final Judgment After Hearing
Outcome
Specific performance refused. Vendor is entitled to proceeds of sale of real property. Purchaser is entitled to damages for breach of contract. Cross-claim dismissed.
Legal Topics
['general Contractual Principles' 'construction and Interpretation' 'equitable Estates and Interests' 'equitable Remedies' 'specific Performance' 'damages for Breach of Contract']
['contract' 'equity'] ['general Contractual Principles' 'construction and Interpretation' 'equitable Estates and Interests' 'equitable Remedies' 'specific Performance' 'damages for Breach of Contract']

Case Brief

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Procedural Posture

Equity Proceedings / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether a binding and enforceable agreement was made on 10 June 2004 and its relevant terms' 'Whether the agreement was terminated or abandoned' 'Whether specific performance should be decreed or damages awarded' 'The beneficial entitlements to the fishing licences' 'The beneficial ownership of the vessel Kimbarra']

Ratio Decidendi

There was a binding and enforceable contract to convey the licences beneficially to the plaintiff and the house to the first defendant, which had not been terminated or abandoned. However, specific performance was refused because the first defendant was not beneficially entitled to the licences, and an order for specific performance would require him to act inconsistently with prior equitable (or corporate) obligations. Damages for breach of contract equivalent to the value of the licences were awarded instead.

Court Disposition

Specific performance refused. Vendor is entitled to proceeds of sale of real property. Purchaser is entitled to damages for breach of contract. Cross-claim dismissed.

Orders

  • ['Declare that the first defendant is entitled to the balance proceeds of sale of the property at 5 Morrissey Way, Greenwell Point.' 'Judgment that the first defendant pay the plaintiff the sum of $38,315.' 'Order that the said judgment be a first charge on the balance of proceeds of sale of the Greenwell Point...