K & K Real Estate Pty Ltd v Adellos Pty Ltd [2010] NSWCA 293

K & K Real Estate Pty Ltd v Adellos Pty Ltd [2010] NSWCA 293

The injunction should not be continued because the possible special leave issues had very limited prospects, the waiver issue was substantially factual, the Peter Turnbull principle had long been applied and was not materially altered by Foran v Wight, the respondents faced hardship including potential loss of the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 November 2010
Procedural Posture
Judgment on Motion / Motion by Unsuccessful Appellant to Continue an Injunction and Ancillary Stay After Dismissal of Appeal, Pending Consideration of an Application for Special Leave to the High Court of Australia
Outcome
Notice of motion dismissed with costs; respondents' undertaking accepted; liberty to apply granted in relation to the stay.
Legal Topics
['contract for Sale of Land' 'notice to Complete' 'waiver of Essentiality of Time' 'termination' 'forfeiture of Deposit' 'specific Performance' 'injunction Pending Special Leave' 'stay Pending Special Leave']
['contract Law' 'property Law' 'equity' 'civil Procedure'] ['contract for Sale of Land' 'notice to Complete' 'waiver of Essentiality of Time' 'termination' 'forfeiture of Deposit' 'specific Performance' 'injunction Pending Special Leave' 'stay Pending Special Leave']

Source-derived case record

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Procedural Posture

Judgment on Motion / Motion by Unsuccessful Appellant to Continue an Injunction and Ancillary Stay After Dismissal of Appeal, Pending Consideration of an Application for Special Leave to the High Court of Australia

Legal Issues

  1. 1 ['Whether the injunction and ancillary stay should be extended until three days after the Court gives its reasons for dismissing the appeal' "Whether the applicant's proposed special leave issues had sufficient prospects or importance to justify continuing interlocutory relief" 'Whether hardship to the respondents, including potential loss of a second contract for sale, weighed against continuing the injunction' 'Whether an undertaking concerning the deposit was sufficient in relation to the stay']

Ratio Decidendi

The injunction should not be continued because the possible special leave issues had very limited prospects, the waiver issue was substantially factual, the Peter Turnbull principle had long been applied and was not materially altered by Foran v Wight, the respondents faced hardship including potential loss of the second contract, the proposed payment and security did not completely alleviate that hardship, and the applicant would not be without a remedy in damages if it later succeeded. The stay was not continued because the respondents' undertaking not to distribute the deposit without seven days prior written notice, with liberty to apply to reimpose the stay, was sufficient.

Court Disposition

Notice of motion dismissed with costs; respondents' undertaking accepted; liberty to apply granted in relation to the stay.

Orders

  • ['Dismiss the Notice of Motion with costs.' "Accept the respondents' undertaking that there will be no distribution of the monies constituted by the deposit unless seven days prior written notice is given to the applicant." 'Grant liberty to apply to a judge of the Equity Division to reimpose the stay should that...