Fuller v Albert (No 3)

1. [1]

   THE COURT: On 14 July 2020, for reasons contained in a judgment which had been delivered on 25 May 2020, [1] a judge of the Equity Division made the following orders: [2]

2. [2]

   Mr Fuller appealed from those orders, and on 18 May 2021, for reasons published on that day, with which these reasons should be read, this Court made the following orders: [3]

3. [3]

   The remitter under order 3 “for further determination in accordance with these reasons” involved two matters, as summarised in the conclusion of the judgment of Emmett AJA, with whom the other members of the Court agreed: in relation to the claim for specific performance of the Agreement (contract claim), it was “remitted to the primary judge for consideration of the practicability of specific performance or, alternatively, for assessment of damages”, [4] and in relation to the claim for redemption of the share mortgage (redemption claim), it was remitted for an inquiry to determine “the just amount that should be paid by Mr Fuller” in order to redeem the Mortgaged Share. [5]

4. [4]

   By Notice of Motion filed on 31 May 2021, Mr and Mrs Albert applied to have the orders of 18 May 2021 recalled or set aside and the hearing of the appeal re-opened, under Uniform Civil Procedure Rules 2005 (NSW), r 36.16, and/or the inherent power of the Court. On 23 August 2021, for reasons published on that day, [6] the Court granted leave to the Alberts to file an Amended Notice of Motion, directed the parties to file and serve written submissions as to the appropriate order concerning costs of the appeal and as to whether the proceedings should be remitted to the Equity Division (being two of the issues in respect of which the Alberts had sought to re-open the No 1 Judgment), and otherwise dismissed the Amended Notice of Motion, with costs. Pursuant to those directions, the parties have made submissions, from which three issues requiring resolution arise: first, whether the proceedings should be remitted to the Equity Division as proposed in the No 1 Judgment; secondly, the costs of the appeal, in so far as it involved the redemption claim; and thirdly, the costs of the appeal in relation to the contract claim.

Should the proceedings be remitted?

1. [5]

   In the No 2 Judgment, the Court observed that although remitter was a not unconventional course, which the parties ought to have anticipated the Court might adopt rather than itself re-exercising the relevant discretion, it was prepared to afford the Alberts a further opportunity to make submissions as to why there should not be a remitter. [7] The Alberts submitted that the contract claim should not be remitted, and that this Court should proceed itself to determine the remaining questions concerning relief on that claim. They did not submit that the redemption claim should not be remitted, although the scope of that remitter in respect of costs was questioned, and is addressed later.

2. [6]

   One basis of the Alberts’ opposition to remitter of the contract claim, which is conveniently dealt with first, is a contention that there is an unresolved question raised in their Notice of Contention as to whether there is any unperformed term in the Agreement, which does not go to the exercise of discretion as to what remedy may be appropriate, but is a question of law that must be determined before any question of remedy, and which, if resolved in their favour, will finally determine the proceedings because the orders of the primary judge will have been correct. They submit that, contrary to the statement in the No 2 Judgment [8] that the Court did not need to find a breach in the sense of non-performance of a term:

3. [7]

   The Alberts’ repeated and increasingly strident complaint that this Court has not dealt with their Notice of Contention in this respect is misconceived. At the outset, it needs to be understood that a Notice of Contention – unlike a Notice of Appeal, or a Notice of Motion – is not a process which seeks relief, and does not require disposition in the sense of orders being made pursuant to it, or dismissing it. A Notice of Contention merely serves to give notice, to avoid surprise, that the respondent to an appeal will rely on arguments not accepted or relied upon by the primary judge, to uphold the decision. If, as in this case, notwithstanding a Notice of Contention, an appeal is allowed and the orders of the primary judge are set aside, the Court has necessarily decided that the judgment should not be upheld on the grounds advanced in the Notice of Contention.

4. [8]

   However, this was not merely implicit. The Notice of Contention (which was filed belatedly on 17 November 2020, some thirteen days before the hearing of the appeal on 30 November 2020), raised, in respect of “the refusal to order specific performance”, eight grounds (numbered 3 to 10 inclusive) on which it was said that the judgment should be affirmed which were not relied on by the primary judge. In the No 1 Judgment, this Court rejected grounds 3 (variation), 4 (waiver or abandonment), and 5 (release), [9] as further explained in the No 2 Judgment. [10] Ground 8 (limitation or laches) was also dealt with and rejected. [11] The complaint that the Court has failed to determine whether there is any unperformed term in the Agreement, and that the Court was wrong in stating that it did not need to find a breach in the sense of non-performance of a term, appears to relate to grounds 6, 7, and 9, which were as follows:

5. [9]

   It is self-evident from the No 1 Judgment and the No 2 Judgment that the Court has necessarily rejected ground 6, in holding that the agreement indeed imposed an obligation on Mr Albert, to the effect of pleaded term (d) of the Agreement. [12] It is also self-evident that it has rejected grounds 7 and 9: by holding (a) that Mr Fuller had repudiated the Agreement, [13] and (b) that such repudiation provided a sufficient basis for an order for specific performance, and that it was not necessary to establish a subsisting breach of a specific contractual obligation, [14] the Court rejected the proposition that the judgment below should be upheld on the basis that there was no breach and no demand and that time for performance may not yet have arisen; it was not necessary to go any further, as neither breach in the strict sense (as distinct from repudiation), nor demand, was a necessary precondition for a decree of specific performance, repudiation being a sufficient trigger. Just because the Notice of Contention asserts that there is no demand, no breach, and that the time for performance has not yet arrived, does not mean that the Court has to determine those assertions, if they are not relevant to the result. Here, they are not relevant to the result because the Court has held that regardless of whether there has been a demand or a breach, and regardless of whether the time for performance has arrived, Mr Fuller is, subject to the question of the practicability of relief, entitled to specific performance.

6. [10]

   Thus the issue which the Court contemplated remitting was whether, it having been held that there was a binding and enforceable agreement, susceptible to specific performance, that remedy should be granted as a matter of discretion, and if not what if any damages or other relief should be awarded instead. In connection with whether, as a matter of discretion, specific performance should now be decreed, there were particular issues as to whether:

   1. (1)

      specific performance is impracticable;

   2. (2)

      the adverse effect of specific performance on the development approval in respect of Matcove’s Property is such that it should be declined; and

   3. (3)

      if specific performance is held to be inappropriate, whether damages should be awarded in substitution, and if so how much, and/or whether Mr Fuller should have an equitable charge as contemplated in the No 1 Judgment. [15]

7. [11]

   Although, as will appear, the Court received some submissions on these issues, they were not elaborate, and in circumstances where the discretionary considerations had not been addressed, at least in any conclusive way, by the primary judge – understandably so, because it was unnecessary for his Honour to do so given the basis on which he disposed of the matter – it appeared preferable to afford both parties the opportunity to address them more fully on remitter. Such a course would also ensure that both parties had a right of appeal to this Court from what would be the first full consideration of the discretionary issues, whereas if this Court itself undertook the exercise, the only remedy would be an appeal by special leave to the High Court.

8. [12]

   However, the Alberts press this Court to determine the outstanding issues, without remitter. In particular, they submit that:

   1. (1)

      neither party sought remitter;

   2. (2)

      all the evidence and submissions required to resolve the outstanding questions are before this Court; and

   3. (3)

      this Court is better placed than the primary judge to consider the remaining issues, since it is in the best position to understand what it has determined, whereas if the matter is remitted, there will be lengthy and complex debate as to what has been remitted and what is yet to be determined.

9. [13]

   There is force in these submissions, especially when they are advanced by the unsuccessful party in the appeal. It is correct that neither party sought remitter, and that in opposing the present application Mr Fuller has changed his position. At the hearing of the appeal, each party envisaged that this Court would, if the appeal succeeded, embark on the exercise of the discretion to grant or withhold specific performance. While the fact that neither party sought remitter by no means binds the Court, it is relevant, as neither party can complain if this Court proceeds, as it indicated was at least a possibility, to re-exercise the discretion itself on the material before it. And it is particularly relevant to the associated submission that the Court has all the evidence and submissions on which the parties wished to rely in respect of the re-exercise of the relevant discretion. Against the eventuality that this Court might itself exercise the discretion to grant specific performance, both parties sought and were permitted to adduce further evidence relevant to that question, and it was made clear that that might well be the only opportunity to do so, as illustrated by the following exchange with counsel for Mr Fuller (emphasis added): [16]

10. [14]

    As already observed, the submissions of each of the parties referred to the discretionary considerations, though not in any elaborate way, and (in the case of the Alberts) chiefly by reference to and incorporation of the submissions they had made at first instance. The significance of the circumstance that it is the unsuccessful party in the appeal, the Alberts, who press for this Court itself to re-exercise the discretion, having proposed remitter in circumstances where, at the hearing, the successful appellant did not seek a remitter, is that the Court need not be concerned that they will be deprived of an opportunity they might have desired to present further evidence or arguments which might have been advanced on remitter.

11. [15]

    Accordingly, while there is much to be said for the view that, the discretion not having been exercised at first instance, there would be benefits for both parties in remitting the question, neither can object if this Court does not do so, and in circumstances where the unsuccessful party presses the Court not to do so but to exercise the discretion itself – presumably in order to avoid the time, costs, and uncertainty of a further hearing – there is good reason to do so.

12. [16]

    Ground 10 of the Alberts’ Notice of Contention was that as a matter of discretion, specific performance should not be ordered. In respect of it, the Albert’s written submissions simply relied on their submissions at first instance and on “the findings of his Honour consistent with these submissions”. In essence, their relevant submissions at first instance were to the effect that the Court should refuse to exercise its discretion to grant specific performance, because (1) there had been no breach by Kerry Albert; (2) Mr Fuller had not been ready and willing to perform his obligations under the agreement, because he acted in a manner inconsistent with any entitlement to land on the Property, in that by disavowing Mr Albert’s entitlement to the Albert Lot for no monetary payment, he equally disavowed any entitlement he may have been said to have to his Lot; (3) the delay in seeking specific performance would result in the effective derailing of the development application; (4) Mr Fuller’s dishonest conduct in bringing the proceedings meant that he lacked clean hands; and (5) Mr Fuller’s inconsistent conduct in respect of any entitlement to his own block of land was also relevant. It was also submitted that the deterioration in Mr Albert’s health, his exposure to abusive conduct by Mr Fuller, and his change of position in making the payment of $175,000 on 21 December 2016, were relevant considerations. Finally, it was submitted that significant weight should be given to the “immense financial damage” any order for specific performance would cause to Matcove (and its shareholders), by reason of its impact on the pending “State-significant” development application, including that it would require a redesign of the entire lot layout, cause the application to be no longer above the 100-lot threshold to invoke the jurisdiction of the Minister as the relevant planning and authority, and consequently have the result of derailing the entire present development application and requiring it to be recommenced, effectively from scratch and likely before a new planning authority.

13. [17]

    To the extent that those submissions do not overlap submissions which have been rejected under other grounds, they relate chiefly to the impact that an order for specific performance would have on the development application. Save for that aspect, the primary judge merely noted the Alberts’ submission that several discretionary factors warranted the refusal of relief, and stated that it was not necessary to address those matters given the findings on other grounds. [17] In respect of the impact specific performance would have on the development application, his Honour said: [18]

14. [18]

    In this Court, Mr Albert sought leave to adduce evidence, which was received by the Court conditionally, that the development application was granted on 8 October 2020, that he had received an offer for the land the subject of the approval in the sum of $8 million, and that he wishes to accept the best offer and proceed to cause Matcove and Moonee Developments to sell the land with the benefit of the development approval. On the same conditional basis, Mr Fuller adduced evidence of a town planner, Mr Wasiak, to the effect that in his opinion, a block of 10,785sqm – some 945sqm less than the 11,730sqm to which Mr Fuller would be entitled under the Agreement – could be created in the approximate location of Lot 1 (the Fuller Lot) described in the Agreement, and that once the lots in that area were created under the development approval, they would have separate titles which could be transferred to Mr Fuller. Alternatively, if it were desired to perform the Agreement immediately, application could be made for a modification of the development approval to allow for a change in the staging sequence, which would not in his opinion be controversial and would likely be granted as a matter of course, “subject to supporting engineering design to demonstrate the sequencing does not prejudice the overall approach”. This, he explained, would involve (1) revision of the approved plans by engineers to reconfigure the staging and works to allow for the Fuller Lot to be in a stand-alone stage with a view to being a separate lot, without affecting the developability of the remainder of the land, at a cost of perhaps $10,000; (2) an application to modify the existing approval, at a cost of a further $5,000, which the Department might take about four months to consider; (3) upon approval, creation of a subdivision plan to enable a subdivision certificate to create the Fuller Lot; (4) registration of the plan; and (5) either selling, or developing in accordance with the approval, the balance of the land. There was no application to cross-examination Mr Wasiak.

15. [19]

    The Alberts submitted that if the Court were to embark on considering discretionary factors relevant to specific performance, they relied on Part IV of their written submissions, and the additional evidence of Mr Albert summarised above. Part IV of their submissions was simply:

16. [20]

    In addition, reference was made in oral submissions to the adverse impact that specific performance would have on the development, and on the value that Matcove would derive from it.

17. [21]

    Mr Fuller’s written submissions stated that he had no desire to cause the impairment of the development application, and accepted that if when the question came to be considered the development application had been granted (as Mr Albert’s evidence established it was), the question of hardship must be considered in that context – in which case the question of compensation in lieu of specific performance would arise.

18. [22]

    Mr Wasiak’s unchallenged evidence shows that, in principle, specific performance is not impossible. The No 1 Judgment makes clear that a powerful discretionary consideration weighing in Mr Fuller’s favour is the imbalance in the respective rights and entitlements of the parties in circumstances where Mr Albert has, but Mr Fuller has not, received their respective lots. [19] However, the combination of the passage of time, the intervening prosecution of the development application over the whole of the land and the expenditure incurred on it, its culmination in the grant of development approval, the impact that an order will have on the development approval and the realisation of benefits for the parties, the considerable complexity that would be involved in working out any order for specific performance, the likelihood of the requirement for ongoing supervision, the availability of alternative remedies, and the absence of evidence that shows any particular reason why the land is of greater importance to Mr Fuller than its value, combine to produce the result that, as a matter of discretion, specific performance should be declined.

19. [23]

    Where specific performance is declined as a matter of discretion having regard to factors such as those, the Court may award damages in substitution for specific performance, under Lord Cairns’ Act, [20] as reflected in Supreme Court Act 1970 (NSW), s 68. The prevailing view is that where a contract is susceptible to specific performance (as this Court has held is the case here), but for a discretionary consideration the Court declines to order it, the statutory power to award damages in substitution for specific performance is engaged. [21] In this context, the court is not awarding damages for breach of contract, but equitable compensation in lieu of specific performance: the power is one to give compensation in respect of an equitable interest. [22] Such damages are intended to put the plaintiff into a position equivalent to that in which it would have been had the contract been specifically performed. [23] In those circumstances, the correct approach is to compare the plaintiff’s position with that which would have obtained had specific performance been decreed and the contract performed. In that event, Mr Fuller would have his lot, 50% larger than Mr Albert’s lot, though he would have incurred the costs of subdivision to create it.

20. [24]

    Ground 11 of the Notice of Contention was that there was a lack of evidence as to quantum, and as to who between Mr Albert and Matcove would be liable. However, the second aspect of that contention is not a matter of evidence. While it is Mr Albert’s repudiation that has enlivened the jurisdiction, the Court is not awarding damages for breach of contract, but equitable compensation in lieu of specific performance. If specific performance were decreed, it would have resulted in the Fuller Lot being subtracted from the remaining property of Matcove, rather than from that of Mr Albert. The pleaded agreement was one to which the parties were Mr Albert, Mr Fuller, and Matcove. This Court accepted that Matcove was a party to the Agreement. [24] Ground 11 of the Notice of Contention specifically adverts to the possibility that damages might be awarded against Matcove. The proper remedy is that in lieu of specific performance, Matcove should pay Mr Fuller the value of the lot which he ought to have received, and that obligation should be charged on Matcove’s land. This reflects the underlying reality that the agreement was one between Mr Fuller, Mr Albert, and Matcove, to create two interests out of Matcove’s land, namely the Fuller Lot and the Albert Lot.

21. [25]

    As to the contention that there was a lack of evidence as to quantum, it is well-established that the assessment of damages is not a precise exercise and a court must do the best it can with the material available. Ideally, the Court would have a valuation of the Fuller Lot, as at today, allowing for the costs of subdividing it. But not having that evidence does not render the exercise impossible. Evidence of value at an earlier date can be used, subject to allowing for the time difference by way of interest or appreciation to derive a proxy for present value.

22. [26]

    Before the primary judge there was a valuation of Mr Loader, who was qualified on behalf of Mr Fuller, that assuming that the Agreement had been performed and that the Fuller Lot had been subdivided and transferred to Mr Fuller, it would have been worth $550,000 at the date of valuation (being 31 July 2019), and $375,000 in December 2005. There was also a valuation of Ms Parkes, who was retained on behalf of the Alberts, that the Fuller Lot was worth $260,000 as at November 2005, and $280,000 at April 2007 (the time when Mr Albert took a transfer of his block); although she offered criticisms of Mr Loader’s current market valuation, she was not instructed to offer an opinion as to current value.

23. [27]

    The primary judge referred to “difficulties” with Mr Loader’s evidence. These included that he miscalculated the land area, by attributing to the Albert Lot an area required to be dedicated to the Council, and thus erroneously inflating the area of the Fuller Lot; assumed that the Fuller Lot was already subdivided, when it was not; and used several sales of properties which already had development approval as comparables. [25] While conscious that Ms Parkes had also incorrectly assumed that the Fuller Lot had been subdivided, [26] his Honour appears to have been disposed to prefer her opinion, albeit noting that it was as at 2007, and not current. [27] Somewhat remarkably, it was submitted to the primary judge on behalf of the Alberts, who had tendered her report, that her evidence could be given no weight because she too assumed that the Fuller Lot had been subdivided. In making that assumption, Ms Parkes was acting in accordance with her instructions. It ill behoves the Alberts, who tendered and relied on her evidence, but failed to give her the correct instructions as to assumptions, to impugn it. Ms Parkes’ valuation of $280,000 (after subdivision) as at 1 April 2007 bears a close relationship to the sum of $262,500, which is the proportionate equivalent for the Fuller Lot of the value of $175,000 attributed to the Albert Lot at that time (before subdivision). [28] Ms Parkes’ 2007 valuation, and the value of $262,500 derived from the value attributed to the Albert Lot (which was then unsubdivided), supports a valuation of at least $262,500 for the Fuller Lot as at 1 April 2007, after providing for the costs of subdivision.

24. [28]

    Interest on $262,500 at the Court rates from 1 April 2007 to 23 September 2021 amounts to $250,257, producing a total of $512,757. That represents appreciation in the land value over that fourteen year and five month period of 95%. However, the Court rates of interest are set at 4% above the cash rate, to recognise the relatively high risk associated with judgment debts, and to incentivise payment. Those considerations do not inform the appreciation of land. Although Mr Loader’s valuation cannot be accepted because of the miscalculation of the land area, it provides some integers which enable appreciation to be tested. Mr Loader’s valuations of $375,000 in December 2005 and $550,000 in July 2019 imply appreciation of 47% for that period of thirteen years and seven months commencing from 2005. Those analyses demonstrate that application of the Court rates is likely to produce a result that exceeds the true appreciation of the land. For the period of fourteen years and five months from 1 April 2007 to 23 September 2021, appreciation of 50% should be allowed on the value before subdivision of $262,500. The proxy for present value before subdivision is therefore $393,750, which is the measure of Mr Fuller’s damages.

Costs of the redemption claim

1. [29]

   The primary judge held that Mr Fuller was not entitled to redeem the share mortgage, chiefly on account of the long period of time since the loan was not repaid. In the No 1 Judgment, this Court held that that was erroneous: [29]

2. [30]

   Mr Albert and Mrs Albert contend that the appropriate order for costs in relation to the issue of redemption is that Mr Fuller pay all the costs, including of the appeal, on the basis that he undertook to do so. However, the offer was not, as the Alberts assert, an unconditional undertaking proffered to the Court and therefore to the parties to the proceedings as well, but, as its terms indicate, an offer, which was not accepted. The transcript references provided in the Alberts’ submissions do not support their assertion that “[d]uring the hearing the Court made it entirely clear that the undertaking was essential and that Mr Fuller would be paying costs if successful”. [31] Contrary to their submissions, but as the passage emphasised above shows, this Court did not state that the “undertaking” was essential, nor that Mr Fuller would be paying the costs if he was successful, but only that there would be costs consequences if he succeeded only because of it. In fact, the Court held that he was entitled to succeed on the basis of what was before the primary judge, the primary judge having erred in holding that the right to redeem had been lost. Thus, Mr Fuller’s success on this issue did not depend on the offer set out above. The basis on which he succeeded was set out in the No 1 Judgment at [84], reproduced above. [32] The observation of a member of the Court, referred to above, that the offer would have costs consequences “if this were the only basis” is not engaged, because, for the reasons explained in the previous paragraph, it was not the only basis on which the Court made an order.

3. [31]

   The Alberts also say that, being a redemption suit, this is not a case where the usual order that costs follow the event applies, and that in a redemption suit the mortgagor is required to pay the mortgagee’s reasonable costs. That is so, to a point, but it does not extend to the costs of wrongfully opposing redemption. In this case, before the primary judge, Mrs Albert wrongly (and unsuccessfully) disputed that the transaction was in the nature of a mortgage; and she wrongly (but, at first instance successfully) contended that any right to redeem had been lost by delay. In this Court, the real issue was whether his Honour erred in holding that the right to redeem had been lost. Mrs Albert failed on that issue. Her incorrect assertion, accepted by the primary judge, that any right to redeem had been lost by delay, put Mr Fuller to the costs of his successful appeal. There is no reason why he should not recover those costs.

4. [32]

   The Alberts also complain that the observation, in the No 2 Judgment, that “[i]t is possible that if an order for redemption is ultimately made at first instance, a condition might be that Mr Fuller bear the costs of the appeal, to the extent that they are attributable to the redemption suit, but that would be a matter for the Equity Division judge”, [33] appears to suggest that it would be open to the judge on remitter to order redemption with a condition that effectively reversed and would be inconsistent with this Court’s order, and that, apart from the question as to whether as a matter of law a first instance judge on remitter could do that, “there is simply no reason to place that hurdle, obstacle and debate upon a trial judge and the parties”. Those submissions have force. There is no reason why Mr Fuller should bear the costs of his successful appeal. Mrs Albert should bear the costs of the appeal on the redemption issue, without it being open to the primary judge on remitter to revisit that question.

5. [33]

   It may well be the case that, in accordance with the general principle, Mr Fuller should be required to pay Mrs Albert’s costs at first instance of the redemption suit, although due allowance will need to be made for the costs arising from Mr Albert’s denial that the arrangement constituted a security. [34] That will be a matter for the primary judge when accounts are taken and an order for redemption is made.

Costs of the contract claim

1. [34]

   In relation to the costs of the contract claim, the Alberts submit that the error attributed by this Court to the primary judge was entirely attributable to the position taken by the successful appellant in not running the point, and in no way contributed to by the position of the respondents. Accordingly, they submit that the usual order for costs in that situation would be that the successful appellant pay the costs of the appeal and the proceedings to date before the primary judge, probably on an indemnity basis.

2. [35]

   The Alberts assert that, if the effect of this Court’s judgments is no more than that there is a contract with a term of good faith and that there has been repudiation of that contract, but no finding of non-performance or breach, that result arises because Mr Fuller did not make a submission in support of such a term either before the primary judge or in the appeal and despite the fact that at no time did Mr Albert deny the existence of such a term. Essentially, this is another attempt to contend, despite the No 2 Judgment, that the case on which Mr Fuller succeeded was not that which he ran at first instance.

3. [36]

   At first instance, Mr Fuller contended that terms (a) and (d) were implied terms of the Agreement. The primary judge held that they were not. This Court held that they were.

4. [37]

   Insofar as the Alberts submit that this was found on a basis not advanced before the primary judge, they are wrong. The “Plaintiff’s Further Submissions on Implied Term” of 5 May 2020 included submissions which are closely analogous to this Court’s reasoning in the No 1 Judgment (at [37]), as explained in the No 2 Judgment (at [4]-[6]). Because of the strident complaints of the Alberts that this case was not that “run” at first instance, it is worth setting out in full the following extract from those submissions:

5. [38]

   Insofar as the Alberts also submit that the result of the appeal does not represent any kind of ultimate success for Mr Fuller, in that the Court had determined only that there was a contract, consistent with the finding made by the primary judge, but that the contract contained a term for co-operation, and that there were further steps upon which Mr Fuller must succeed before he could be said to have been successful, this (No 3) judgment explains, for at least the second time, that Mr Fuller was successful in establishing that there was an agreement which, subject to discretionary considerations, he was entitled to have specifically performed. Moreover, this judgment finalises his success, with a judgment for damages in substitution for specific performance.

6. [39]

   This Court has done no more than conclude that the terms pleaded by Mr Fuller in the Amended Statement of Claim have been made out. That is the case that has always been advanced by Mr Fuller as plaintiff. Ultimately, Mr Fuller has been successful in establishing that the primary judge erred in rejecting his pleaded terms (a) and (d). Those contentions were opposed by Mr Albert. In those circumstances, there is no reason why Mr Fuller should not have his costs of the appeal, and, subject to what follows, of the proceedings at first instance, in relation to the contractual issues.

7. [40]

   On a separate point, Mr Albert and Mrs Albert complain that the orders for costs made by this Court have the effect of setting aside all of the other costs orders made by the primary judge, including the order that their costs from the commencement of proceedings until the amendments made to the Statement of Claim were to be paid on an indemnity basis by Mr Fuller, that the Court gave no explanation as to why that order should be set aside, and that they have not been heard in this respect. This Court did not intend to interfere with the primary judge’s exercise of discretion as to costs thrown away by amendments made by Mr Fuller and the late change in the course of his claim. Order 2 made by this Court on 18 May 2021 should be amended to read “Orders 1, 2, and 4 made on 14 July 2020 be set aside”, thus preserving the order for indemnity costs in favour of the Alberts up to 26 April 2019.

Orders

1. [41]

   The Alberts requested a “short oral hearing” to “explain the points and answer any questions the Court might have”, if there was anything in their submissions that the Court felt it did not understand. Having regard to the above reasons and below conclusions, the Court is not of the view that there is anything which requires elaboration or explanation in an oral hearing.

2. [42]

   For the foregoing reasons:

   1. (1)

      The contract claim should not be remitted;

   2. (2)

      Specific performance of the Agreement should be declined as a matter of discretion;

   3. (3)

      In substitution for specific performance, Matcove should pay Mr Fuller damages in the sum of $393,750;

   4. (4)

      The Alberts should pay Mr Fuller’s costs of the appeal, in respect of both the contract claim and the redemption claim;

   5. (5)

      The Alberts should pay Mr Fuller’s costs of the proceedings at first instance in respect of the contract claim after 26 April 2019. The primary judge’s order for indemnity costs in favour of the Alberts up to 26 April 2019 should not be disturbed; and

   6. (6)

      The costs of the proceedings at first instance in respect of the redemption claim will be a matter for the primary judge upon remitter to take accounts and order redemption.

3. [43]

   The following orders should be made:

   1. (1)

      Vary Order (2) made by this Court on 18 May 2021 to read “Orders 1, 2, and 4 made on 14 July 2020 be set aside”.

   2. (2)

      Set aside Order (5) made by this Court on 18 May 2021 and in lieu thereof grant leave, to the extent that it be required, to Mr Albert to rely on his affidavit sworn on 11 November 2020, and to Mr Fuller to rely on the affidavit of Jason Wasiak affirmed 20 November 2020, with costs of the motion filed on 11 November 2020 to be costs in the appeal.

   3. (3)

      Set aside Order (3) made by this Court on 18 May 2021 and in lieu thereof: