Zorbas v Titan Properties (Aust) [2005] NSWSC 213

Zorbas v Titan Properties (Aust) [2005] NSWSC 213

The first defendant had entered a valid contract to purchase the land, repeatedly failed to complete, and filed no defence so relevant pleaded allegations were deemed admitted. Land is ordinarily an appropriate subject for specific performance, and the expiry of the development consent, uncertainty about obtaining a similar consent, and demolition of the cottages made damages inadequate. It was therefore appropriate to order specific performance, but completion should be fixed for 4 April 2005 rather than seven days because contempt proceedings were being contemplated and the Easter period intervened; service should include facsimile service on the first defendant's solicitors and...

Jurisdiction
Australia
Judgment Date
14 March 2005
Procedural Posture
Equity Proceeding Concerning Specific Performance of a Contract for Sale of Land / Determination of a Separate Preliminary Question in the Absence of the Defendants Under Part 34 Rule 5 Supreme Court Rules 1970
Outcome
Specific performance ordered
Legal Topics
['proceeding in Absence of Defendant' 'vendor and Purchaser' 'breach of Contract for Sale of Land' 'specific Performance' 'development Consent' 'service of Court Orders']
['procedure' 'conveyancing' 'equity'] ['proceeding in Absence of Defendant' 'vendor and Purchaser' 'breach of Contract for Sale of Land' 'specific Performance' 'development Consent' 'service of Court Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceeding Concerning Specific Performance of a Contract for Sale of Land / Determination of a Separate Preliminary Question in the Absence of the Defendants Under Part 34 Rule 5 Supreme Court Rules 1970

Legal Issues

  1. 1 ['Whether there is a valid and enforceable contract between the plaintiff and the first defendant dated 28 April 2004 for the sale of 38 and 40 Edgbaston Road, Beverley Hills.' 'Whether an order for specific performance of that contract should be made.' 'Whether the Court should proceed in the absence of the defendants.' 'What time and manner of service should be allowed for completion and service of the order for specific performance.']

Ratio Decidendi

The first defendant had entered a valid contract to purchase the land, repeatedly failed to complete, and filed no defence so relevant pleaded allegations were deemed admitted. Land is ordinarily an appropriate subject for specific performance, and the expiry of the development consent, uncertainty about obtaining a similar consent, and demolition of the cottages made damages inadequate. It was therefore appropriate to order specific performance, but completion should be fixed for 4 April 2005 rather than seven days because contempt proceedings were being contemplated and the Easter period intervened; service should include facsimile service on the first defendant's solicitors and...

Court Disposition

Specific performance ordered

Orders

  • ['Declared, by the declaration in paragraph 1 of the Short Minutes of Order, in favour of the plaintiff on the separate question.' 'Ordered specific performance of the contract for sale dated 28 April 2004 between the plaintiff and the first defendant.' 'Fixed 4 April 2005 as the appropriate date for completion.'...