Order for Specific Performance of Real Estate Contract

The claimant sought specific performance of a real estate contract after serving a notice to complete. The NSW Supreme Court granted the order, finding that the claimant had proven the existence of the contract, payment of the deposit, readiness to complete the transaction, and compliance with the notice to complete.

New South Wales Supreme Court

CITATION : [NAME] v [NAME] [2003] NSWSC 1201 HEARING DATE(S) : 5 December 2003 JUDGMENT DATE : 5 December 2003 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Specific performance ordered.

CATCHWORDS : EQUITY [379] - Equitable remedies - Specific performance - The jurisdiction in general - General principles - Enforcement by purchaser. PARTIES : [NAME] (P) [NAME] (D) FILE NUMBER(S) : SC 6090/03 COUNSEL : [redacted] No appearance (D) SOLICITORS : [redacted] No appearance (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J FRIDAY, 5 DECEMBER 2003

6090/03 [NAME] v [NAME] 1 HIS HONOUR: These are proceedings for the specific performance of a parcel of land at Salamander Bay. The plaintiff has proved that a contract in the usual form was entered into between him and the defendant for the sale of the property to him for $125,000. It is proved that he paid the deposit under the contract and that he has cash funds available, to pay the balance of the purchase price. Although a notice to complete is not a prerequisite for an order for specific performance, a notice to complete was served when the contract was not completed in time and was not complied with. 2 Although the affidavit of service of the summons is slightly curious in form I am prepared to find, on the basis of that affidavit, that the summons was duly served on the defendant. The defendant did not appear in Court on the return of the summons and an attempt has been made to inform him of the adjourned date by a letter to his former solicitors. He has not appeared again today and the hearing of the summons has proceeded in his absence. 3 The plaintiff has demonstrated those matters that entitle him to an order for specific performance, including that he was ready, willing and able to carry out the contract on his part so far as it remains to be performed by him. 4 In those circumstances I make orders in terms of prayers 1, 2 and 3 in the summons. I grant liberty to apply on three days' notice. I order that the defendant pay the plaintiff's costs of the proceedings. I direct that these orders be entered forthwith.

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