Say-Dee Pty Ltd v Farah Constructions Pty Ltd & Ors (No.3) [2006] NSWCA 329

Say-Dee Pty Ltd v Farah Constructions Pty Ltd & Ors (No.3) [2006] NSWCA 329

The court held it was appropriate to vary orders to clarify that the receivers have power to postpone the sale of the properties if, on receipt of appropriate advice, doing so is reasonably likely, in light of town planning and market conditions, to achieve a greater sale price. The clarification does not determine any claim for relief but enables the receivers to exercise commercial judgment regarding timing of sale to maximise value.

Parties
Appellant: Say-Dee Pty Ltd; First Respondent: Farah Constructions Pty Ltd; Receiver: Brian Silvia; Receiver: John Meluish; Respondent: Lesmint Pty Ltd; Respondent: Farah Elias; Respondent: Margaret Elias; Respondent: Sarah Elias; Respondent: Jade Elias
Jurisdiction
Australia
Judgment Date
28 November 2006
Procedural Posture
Notice of Motion to Vary Orders / Post Judgment, Motion to Vary Receivers' Powers
Outcome
Orders varied. Respondents to pay appellant's costs of the Notice of Motion.
Legal Topics
Variation of Court Orders, Receivership Powers, Constructive Trust, Property Sale Process, Court Discretion in Implementation of Orders
Civil Procedure Property Law Town Planning Variation of Court Orders Receivership Powers Constructive Trust Property Sale Process Court Discretion in Implementation of Orders

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Parties

Say-Dee Pty Ltd

Appellant

Farah Constructions Pty Ltd

First Respondent

Brian Silvia

Receiver

John Meluish

Receiver

Lesmint Pty Ltd

Respondent

Farah Elias

Respondent

Margaret Elias

Respondent

Sarah Elias

Respondent

Jade Elias

Respondent

Procedural Posture

Notice of Motion to Vary Orders / Post Judgment, Motion to Vary Receivers' Powers

Legal Issues

  1. 1 Whether the court should vary the powers of receivers regarding postponement of property sale to maximise sale price in light of prospective rezoning.
  2. 2 Whether the receivers have the power to postpone the sale of the properties if in the reasonably foreseeable future a higher price is likely due to market/town planning conditions.

Ratio Decidendi

The court held it was appropriate to vary orders to clarify that the receivers have power to postpone the sale of the properties if, on receipt of appropriate advice, doing so is reasonably likely, in light of town planning and market conditions, to achieve a greater sale price. The clarification does not determine any claim for relief but enables the receivers to exercise commercial judgment regarding timing of sale to maximise value.

Court Disposition

Orders varied. Respondents to pay appellant's costs of the Notice of Motion.

Orders

  • Order 8(a) and (e) varied to empower receivers to postpone sale for a reasonable period if advised that a higher price is likely in foreseeable future due to town planning/market conditions; and to engage consultants for development approvals and valuation advice.
  • Respondents to pay appellant's costs of Notice of Motion filed 9 August 2006.