George Georges & 2 Ors v Richard Davies & Anor [2007] NSWSC 1284

George Georges & 2 Ors v Richard Davies & Anor [2007] NSWSC 1284

Specific performance (demolition) is refused because it would be oppressive and out of proportion to any reasonably identifiable harm to the plaintiffs, who can be adequately compensated by damages; furthermore, the contract did not create a fiduciary relationship, so no account of profits is available. Damages should be assessed by reference to a fair price for releasing the defendants from their demolition obligation.

Parties
First Plaintiff: George Georges; Second Plaintiff: Michael Zaarour; Third Plaintiff: All Care Building & Maintenance Pty Ltd; First Defendant: Richard Davies; Second Defendant: Carolyn Davies
Jurisdiction
Australia
Judgment Date
13 November 2007
Procedural Posture
Civil / Judgment After Hearing
Outcome
Damages awarded to the plaintiffs; claim for specific performance and fiduciary relief refused.
Legal Topics
Specific Performance, Damages in Lieu, Building Contract, Settlement Agreement, Fiduciary Duty
Equity Contract Law Specific Performance Damages in Lieu Building Contract Settlement Agreement Fiduciary Duty

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Parties

George Georges

First Plaintiff

Michael Zaarour

Second Plaintiff

All Care Building & Maintenance Pty Ltd

Third Plaintiff

Richard Davies

First Defendant

Carolyn Davies

Second Defendant

Procedural Posture

Civil / Judgment After Hearing

Legal Issues

  1. 1 Whether an order for specific performance requiring demolition of building improvements should be granted or damages awarded instead
  2. 2 Whether the defendants owed a fiduciary duty to the plaintiffs under the settlement agreement

Ratio Decidendi

Specific performance (demolition) is refused because it would be oppressive and out of proportion to any reasonably identifiable harm to the plaintiffs, who can be adequately compensated by damages; furthermore, the contract did not create a fiduciary relationship, so no account of profits is available. Damages should be assessed by reference to a fair price for releasing the defendants from their demolition obligation.

Court Disposition

Damages awarded to the plaintiffs; claim for specific performance and fiduciary relief refused.

Orders

  • Damages awarded to the plaintiffs in the sum of $127,000.00.
  • Plaintiffs to bring in short minutes for disposal of cross-claim and submissions as to interest and costs.