Amaya v Everest Property Holdings Pty Ltd; Firmstone v Everest Property Holdings Pty Ltd; Sarkar and Islam v Everest Property Holdings Pty Ltd [2010] NSWCA 315

Amaya v Everest Property Holdings Pty Ltd; Firmstone v Everest Property Holdings Pty Ltd; Sarkar and Islam v Everest Property Holdings Pty Ltd [2010] NSWCA 315

The occupation certificates served on the purchasers satisfied special condition 7 because the fire safety certificate and schedule were not part of the occupation certificate and reg 155(2) required accompanying documents at the time of issue. The vendor was required to show reliance on any intimation that performance would be useless. In the Amaya and Firmstone matters, the purchasers were represented by solicitors and their communications or failure to take normal conveyancing steps supported an inference that the vendor relied on intimations that they would not complete, so the vendor's failure to attend settlement did not invalidate its termination. In the Sarkar and Islam matter,...

Jurisdiction
Australia
Judgment Date
24 November 2010
Procedural Posture
Civil Appeal Concerning Vendor and Purchaser Contracts for Sale of Land / Appeal From Supreme Court of New South Wales, Equity Division, White J, Decision Dated 9 February 2010
Outcome
Appeal by Sarkar and Islam allowed with costs; appeals by Amaya and Firmstone dismissed with costs.
Legal Topics
['condition Precedent to Completion' 'notice to Complete' 'termination of Contract' 'readiness, Willingness and Ability to Complete' 'occupation Certificate Under Environmental Planning and Assessment Act 1979' 'fire Safety Certificate and Fire Safety Schedule' 'intimation That Performance Is Useless' 'estoppel and Reliance' 'off the Plan Strata Sale Contracts']
['contract Law' 'conveyancing' 'property Law' 'equity'] ['condition Precedent to Completion' 'notice to Complete' 'termination of Contract' 'readiness, Willingness and Ability to Complete' 'occupation Certificate Under Environmental Planning and Assessment Act 1979' 'fire Safety Certificate and Fire Safety Schedule' 'intimation That Performance Is Useless' 'estoppel and Reliance' 'off the Plan Strata Sale Contracts']

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Procedural Posture

Civil Appeal Concerning Vendor and Purchaser Contracts for Sale of Land / Appeal From Supreme Court of New South Wales, Equity Division, White J, Decision Dated 9 February 2010

Legal Issues

  1. 1 ['Whether an occupation certificate within the meaning of the Environmental Planning and Assessment Act 1979 had to be accompanied by fire safety documents when served under special condition 7.' 'Whether proof of reliance is required to support an implied intimation that performance of a condition precedent would be useless.' 'Whether there was evidence capable of demonstrating reliance by the vendor on an intimation by the Amayas or Mr Firmstone.' 'Whether the silence of Sarkar and Islam gave rise to an unequivocal intimation which was acted on by the vendor.']

Ratio Decidendi

The occupation certificates served on the purchasers satisfied special condition 7 because the fire safety certificate and schedule were not part of the occupation certificate and reg 155(2) required accompanying documents at the time of issue. The vendor was required to show reliance on any intimation that performance would be useless. In the Amaya and Firmstone matters, the purchasers were represented by solicitors and their communications or failure to take normal conveyancing steps supported an inference that the vendor relied on intimations that they would not complete, so the vendor's failure to attend settlement did not invalidate its termination. In the Sarkar and Islam matter,...

Court Disposition

Appeal by Sarkar and Islam allowed with costs; appeals by Amaya and Firmstone dismissed with costs.

Orders

  • ['Appeal 2008/278655 of Sarkar and Islam v Everest Property Holdings Pty Ltd is allowed with costs.' 'Appeals 2007/258059 and 2007/258063 of Amaya v Everest Property Holdings Pty Ltd and Firmstone v Everest Property Holdings Pty Ltd respectively are dismissed with costs.' 'Parties to bring in short minutes of the...