Ogilvie v Salfa Pty Ltd [2008] NSWSC 578

Ogilvie v Salfa Pty Ltd [2008] NSWSC 578

Although the defendant company was insolvent and paralysed, non-compliance with the specific performance order was not inevitable: the mortgage impediment might be removed by sale of remaining units and a liquidator might soon be appointed to act for the company. Because the proposed orders were not shown to be futile and contempt questions were anterior and speculative, the appropriate next step was to make the orders sought for performance in three months' time. Costs were ordered against the defendant, but not against Dr Ferry because no costs order had been sought against him until the application was made.

Jurisdiction
Australia
Judgment Date
06 June 2008
Procedural Posture
Equity Proceedings Concerning Enforcement of an Order for Specific Performance / Plaintiffs' Motion for Orders to Effect the Carrying Out of an Existing Order for Specific Performance
Outcome
Orders made for carrying out the order for specific performance; costs ordered against the defendant; costs against Dr Ferry refused.
Legal Topics
['specific Performance' 'enforcement of Court Orders' 'contempt' 'company Insolvency' 'costs']
['equity' 'civil Procedure'] ['specific Performance' 'enforcement of Court Orders' 'contempt' 'company Insolvency' 'costs']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Enforcement of an Order for Specific Performance / Plaintiffs' Motion for Orders to Effect the Carrying Out of an Existing Order for Specific Performance

Legal Issues

  1. 1 ['Whether the Court should make specific orders as to what the defendant should do to carry out the existing order for specific performance.' 'Whether the proposed orders would be futile because the defendant company was insolvent, paralysed or likely to be wound up.' 'Whether authorities concerning contempt for non-compliance by insolvent or wound up companies made it inappropriate to make the orders sought.' 'Whether costs of the motion should be ordered against Dr Ferry as a respondent to the motion.']

Ratio Decidendi

Although the defendant company was insolvent and paralysed, non-compliance with the specific performance order was not inevitable: the mortgage impediment might be removed by sale of remaining units and a liquidator might soon be appointed to act for the company. Because the proposed orders were not shown to be futile and contempt questions were anterior and speculative, the appropriate next step was to make the orders sought for performance in three months' time. Costs were ordered against the defendant, but not against Dr Ferry because no costs order had been sought against him until the application was made.

Court Disposition

Orders made for carrying out the order for specific performance; costs ordered against the defendant; costs against Dr Ferry refused.

Orders

  • ["The actions required to complete the transaction the subject of the specific performance order are to be carried out in three months' time." 'The plaintiffs have costs of the motion against the defendant.' 'The application for costs against Dr Ferry is refused.']