Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd [2016] NSWCA 32

Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd [2016] NSWCA 32

The vendor was not entitled to terminate the contract on 26 February 2015 because it was not ready, willing and able to complete on the date made essential by the notice to complete; the vendor could not provide a transfer executed in accordance with the Corporations Act and could not produce a discharge of mortgage, so the attempted termination was invalid.

Jurisdiction
Australia
Judgment Date
07 March 2016
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal dismissed; cross-appeal allowed
Legal Topics
['notice to Complete' 'contract Termination' 'relief Against Termination' 'execution of Transfer' 'ready Willing and Able Doctrine']
['conveyancing' 'equity'] ['notice to Complete' 'contract Termination' 'relief Against Termination' 'execution of Transfer' 'ready Willing and Able Doctrine']

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Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether the vendor was entitled to terminate the contract after service of notice to complete when it was not ready, willing and able to complete' 'Whether the purchaser was in default for failing to provide a proper form of transfer' 'Whether the doctrine in Tanwar Enterprises Pty Ltd v Cauchi applied to grant equitable relief against termination']

Ratio Decidendi

The vendor was not entitled to terminate the contract on 26 February 2015 because it was not ready, willing and able to complete on the date made essential by the notice to complete; the vendor could not provide a transfer executed in accordance with the Corporations Act and could not produce a discharge of mortgage, so the attempted termination was invalid.

Court Disposition

Appeal dismissed; cross-appeal allowed

Orders

  • ['Appeal dismissed' 'Orders (1),(3),(4),(5),(6) of Bergin CJ in Eq of 13 April 2015 set aside' 'Cross-appeal allowed' "Declaration that contract dated 23 October 2014 between the parties was not terminated by appellant's notice of termination dated 26 February 2015" "Matter remitted to Supreme Court, Equity Division...