Despot v Registrar General of NSW [2014] NSWSC 1002

Despot v Registrar General of NSW [2014] NSWSC 1002

The plaintiff's motion to set aside the transfer of the unit or to revoke the specific performance order failed because: (1) the contract could not be terminated for non-payment without first seeking vacation of the order for specific performance; (2) the right to terminate was not validly exercised and, in any event, the contract had been fully performed in substance (with a vendor's lien available for unpaid price); (3) the application of UCPR r 39.50 was not triggered, as no specific time for payment was stipulated; (4) there was no breach of the order or operative injunction providing grounds for reconveyance; (5) set-off of the outstanding purchase price against costs was not...

Jurisdiction
Australia
Judgment Date
28 July 2014
Procedural Posture
Civil / Ruling on Multiple Motions Post Appeal
Outcome
All relevant motions dismissed; costs and further orders to be resolved if agreement is not reached.
Legal Topics
['specific Performance' 'termination of Contract' "vendor's Lien" 'set Off' 'strata Title' 'merger of Rights' 'registration of Land Title' 'interlocutory Injunction']
['procedure' 'contract' 'property Law'] ['specific Performance' 'termination of Contract' "vendor's Lien" 'set Off' 'strata Title' 'merger of Rights' 'registration of Land Title' 'interlocutory Injunction']

Case Brief

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Procedural Posture

Civil / Ruling on Multiple Motions Post Appeal

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to terminate the contract for sale for non-payment of outstanding purchase price after specific performance order' 'Whether UCPR r 39.50 applied to allow plaintiff to reverse acts done before fulfilment of a condition (payment)' 'Whether the registered transfer breached the order for specific performance or the interlocutory injunction and if so, whether plaintiff entitled to a retransfer' 'Whether the defendants were entitled to set-off the unpaid purchase price against costs awards']

Ratio Decidendi

The plaintiff's motion to set aside the transfer of the unit or to revoke the specific performance order failed because: (1) the contract could not be terminated for non-payment without first seeking vacation of the order for specific performance; (2) the right to terminate was not validly exercised and, in any event, the contract had been fully performed in substance (with a vendor's lien available for unpaid price); (3) the application of UCPR r 39.50 was not triggered, as no specific time for payment was stipulated; (4) there was no breach of the order or operative injunction providing grounds for reconveyance; (5) set-off of the outstanding purchase price against costs was not...

Court Disposition

All relevant motions dismissed; costs and further orders to be resolved if agreement is not reached.

Orders

  • ["Mr Despot's motion of 6 May 2014 dismissed." "Westpac's motion of 1 July 2014 dismissed." "Stelli's motion of 30 June 2014 dismissed." 'Stand over remaining strata fee motions to a date to be fixed.']