KALAMEN v AL AUBODI [2010] NSWSC 544

KALAMEN v AL AUBODI [2010] NSWSC 544

Although the Notice to Complete did not comply with Special Condition 34(3) because it required completion at 2.00 pm on the fourteenth day, in the circumstances it nevertheless allowed a reasonably sufficient time for completion. The purchaser's inability to complete was caused by delays by his mortgage broker and financier, not by the vendor, and the vendor was ready, willing and able to complete subject to ordinary co-operative settlement arrangements. The vendor therefore validly terminated the contract on 6 May 2009 and was contractually entitled to the forfeited deposit. There were no equitable grounds to relieve the purchaser from forfeiture under s 55(2A) of the Conveyancing Act...

Jurisdiction
Australia
Judgment Date
28 May 2010
Procedural Posture
Vendor and Purchaser Proceedings Concerning a Contract for Sale of Land / Principal Judgment After Hearing
Outcome
The plaintiff succeeded; the first defendant's cross-claim was dismissed with costs; relief against forfeiture was refused.
Legal Topics
['notice to Complete' 'contract for Sale of Land' 'deposit Forfeiture' 'relief Against Forfeiture' 'specific Performance' 'caveat Removal' 'readiness, Willingness and Ability to Complete']
['property Law' 'equity' 'contract Law' 'conveyancing'] ['notice to Complete' 'contract for Sale of Land' 'deposit Forfeiture' 'relief Against Forfeiture' 'specific Performance' 'caveat Removal' 'readiness, Willingness and Ability to Complete']

Case Brief

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Procedural Posture

Vendor and Purchaser Proceedings Concerning a Contract for Sale of Land / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the vendor's Notice to Complete, served on 21 April 2009 and requiring completion at 2.00 pm on 5 May 2009, was effective notwithstanding that it did not provide the whole of the fourteenth day referred to in Special Condition 34(3)." 'Whether the vendor was ready, willing and able to complete the contract on 5 May 2009.' 'Whether the vendor validly terminated the contract on 6 May 2009 and became entitled to the deposit.' 'Whether the purchaser should obtain specific performance or relief against forfeiture of the deposit under s 55(2A) of the Conveyancing Act 1919.' "Whether the purchaser's caveat should be removed."]

Ratio Decidendi

Although the Notice to Complete did not comply with Special Condition 34(3) because it required completion at 2.00 pm on the fourteenth day, in the circumstances it nevertheless allowed a reasonably sufficient time for completion. The purchaser's inability to complete was caused by delays by his mortgage broker and financier, not by the vendor, and the vendor was ready, willing and able to complete subject to ordinary co-operative settlement arrangements. The vendor therefore validly terminated the contract on 6 May 2009 and was contractually entitled to the forfeited deposit. There were no equitable grounds to relieve the purchaser from forfeiture under s 55(2A) of the Conveyancing Act...

Court Disposition

The plaintiff succeeded; the first defendant's cross-claim was dismissed with costs; relief against forfeiture was refused.

Orders

  • ['A declaration that on 6 May 2009 the plaintiff validly terminated the contract for the sale of land comprised in Lot 15 of Deposited Plan 860350 and known as 311 Wilson Rd, Green Valley with the first defendant and dated 5 March 2009.' 'A declaration that the first defendant has forfeited the deposit paid to the...