TC (Tallwoods) Pty Ltd v Mustapha [2013] NSWSC 1551

TC (Tallwoods) Pty Ltd v Mustapha [2013] NSWSC 1551

Special Condition 19 of the contract is to be construed such that the obligation on the purchaser (defendant) to do all things reasonable and necessary to assist the vendor (plaintiff) to create the easement survives completion, and includes executing and providing the necessary transfer granting easement as required by the vendor, in accordance with the commercial purpose and the non-merge clause.

Jurisdiction
Australia
Judgment Date
28 October 2013
Procedural Posture
Civil / Principal Judgment
Outcome
Plaintiff's claim for specific performance granted.
Legal Topics
['specific Performance' 'contractual Interpretation' 'easements']
['equity' 'property Law'] ['specific Performance' 'contractual Interpretation' 'easements']

Case Brief

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Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 ['Proper construction of a special contractual condition relating to creation of an easement' 'Whether defendant is required to execute a transfer granting an easement after completion where vendor no longer holds title' 'Effect of contractual language and commercial purpose in determination of obligations']

Ratio Decidendi

Special Condition 19 of the contract is to be construed such that the obligation on the purchaser (defendant) to do all things reasonable and necessary to assist the vendor (plaintiff) to create the easement survives completion, and includes executing and providing the necessary transfer granting easement as required by the vendor, in accordance with the commercial purpose and the non-merge clause.

Court Disposition

Plaintiff's claim for specific performance granted.

Orders

  • ["Defendant to execute and provide to plaintiff's solicitors the transfer granting easement referred to, within 7 business days of this order." 'Defendant to arrange production of the title for Lot 895 in Deposited Plan 1079140 for registration of the transfer granting easement.' "Defendant to pay plaintiff's costs...