HEARSE & ANOR v PALLISTER & ORS [2009] NSWSC 807

HEARSE & ANOR v PALLISTER & ORS [2009] NSWSC 807

The Notice to Complete was not rendered invalid by being addressed to both Mr and Mrs Pallister, since the applicant as sole party was given all necessary information and obligations; the inclusion of Mrs Pallister's name was nugatory, and the applicant suffered no confusion or prejudice. No arguable defence was established to warrant setting aside the judgments and orders. However, since there was no adjudication on the merits in respect of the second cross-claim, the order dismissing it was set aside.

Parties
Plaintiff: Phillip Baden Hearse & Anor; First Defendant/applicant: Mark James Pallister; Second Defendant: Vanessa Joan Pallister; Defendants/cross Defendants: Third, Fourth, and Fifth Defendants (not named)
Jurisdiction
Australia
Judgment Date
14 August 2009
Procedural Posture
Application / Application by First Defendant to Set Aside Judgments and Orders
Outcome
Application by first defendant to set aside judgments and orders dismissed, except order dismissing second cross-claim set aside
Legal Topics
Contract for Sale of Land, Vendor and Purchaser, Notice to Complete, Setting Aside Judgments, Cross Claim, Non Appearance at Hearing
Contract Law Civil Procedure Contract for Sale of Land Vendor and Purchaser Notice to Complete Setting Aside Judgments Cross Claim Non Appearance at Hearing

Case Brief

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Parties

Phillip Baden Hearse & Anor

Plaintiff

Mark James Pallister

First Defendant/applicant

Vanessa Joan Pallister

Second Defendant

Third, Fourth, and Fifth Defendants (not named)

Defendants/cross Defendants

Procedural Posture

Application / Application by First Defendant to Set Aside Judgments and Orders

Legal Issues

  1. 1 Whether the Notice to Complete served by the vendors was invalid due to being addressed to both Mr and Mrs Pallister when only Mr Pallister was a party to the contract
  2. 2 Whether the first defendant had a good arguable defence to the claim
  3. 3 Whether there was a proper and satisfactory explanation for the applicant's failure to appear at the hearing

Ratio Decidendi

The Notice to Complete was not rendered invalid by being addressed to both Mr and Mrs Pallister, since the applicant as sole party was given all necessary information and obligations; the inclusion of Mrs Pallister's name was nugatory, and the applicant suffered no confusion or prejudice. No arguable defence was established to warrant setting aside the judgments and orders. However, since there was no adjudication on the merits in respect of the second cross-claim, the order dismissing it was set aside.

Court Disposition

Application by first defendant to set aside judgments and orders dismissed, except order dismissing second cross-claim set aside

Orders

  • Except as provided below, the application for orders sought in paragraphs 1, 2, 3 and 4 of the notice of motion filed on 26 February 2009 is dismissed.
  • The order made on 2 July 2008 and entered on 3 July 2008 dismissing the second cross-claim (order 5) is set aside.