Le Serve v Great Wall Resources Pty Ltd [2010] NSWSC 1213

Le Serve v Great Wall Resources Pty Ltd [2010] NSWSC 1213

The Court accepted the evidence of solicitor Vic Cuoco that, before exchange, the defendant's principal agreed that the plaintiffs need not pay a deposit and instructed exchange without a deposit. That evidence established both that the contract was entered into on 23 January 2003 and that the written contract should be rectified to state a nil deposit. The objection concerning annexed plans failed because the Court accepted that the plans existed and were attached when the contract was made. The plaintiffs were therefore entitled to specific performance of the contract as rectified, and to an inquiry as to damages if the right of way remained at settlement.

Jurisdiction
Australia
Judgment Date
26 October 2010
Procedural Posture
Suit for Rectification and Specific Performance of a Contract for the Sale of Land / Principal Judgment After Hearing
Outcome
Contract rectified and specific performance granted.
Legal Topics
['specific Performance' 'rectification' 'contract for Sale of Land' 'deposit' 'notice to Complete' 'right of Way' 'damages Inquiry']
['equity' 'contract' 'property'] ['specific Performance' 'rectification' 'contract for Sale of Land' 'deposit' 'notice to Complete' 'right of Way' 'damages Inquiry']

Case Brief

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Procedural Posture

Suit for Rectification and Specific Performance of a Contract for the Sale of Land / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the contract for the sale of Lot 111 was entered into on 23 January 2003.' 'Whether the contract should be rectified to specify a nil deposit rather than a deposit of $32,500.' 'Whether the defendant instructed that the requirement for a deposit be dispensed with.' 'Whether plans annexed to the contract existed and were attached when the contract was entered into.' 'Whether the plaintiffs were entitled to specific performance of the contract as rectified.' 'Whether, if the right of way remained on the property at settlement, there should be an inquiry as to damages.']

Ratio Decidendi

The Court accepted the evidence of solicitor Vic Cuoco that, before exchange, the defendant's principal agreed that the plaintiffs need not pay a deposit and instructed exchange without a deposit. That evidence established both that the contract was entered into on 23 January 2003 and that the written contract should be rectified to state a nil deposit. The objection concerning annexed plans failed because the Court accepted that the plans existed and were attached when the contract was made. The plaintiffs were therefore entitled to specific performance of the contract as rectified, and to an inquiry as to damages if the right of way remained at settlement.

Court Disposition

Contract rectified and specific performance granted.

Orders

  • ['The contract is to be rectified to show a nil deposit.' 'Specific performance of the contract as rectified is granted.' 'If the right of way specified in special condition 42 remains on the property at settlement, there is to be an inquiry as to damages.']