Express Clearances Pty Ltd v The Austral Brick Company Pty Ltd [2007] NSWSC 213

Express Clearances Pty Ltd v The Austral Brick Company Pty Ltd [2007] NSWSC 213

On the proper construction of the carefully drawn deed, clause 11 required strict compliance for notices under the deed. The deed specified the purchaser's address for notices, made time of the essence, and distinguished between matters that could be done through solicitors and matters requiring notice to the purchaser. Because both the notice of registration of the plan and the purported notice of exercise of the put option were served on the purchaser's solicitor rather than in accordance with clause 11, the defendant did not validly exercise the put option.

Jurisdiction
Australia
Judgment Date
14 March 2007
Procedural Posture
Contract and Conveyancing Dispute Concerning a Put and Call Option Deed for Land / Separate Question Heard in Advance of Other Questions Pursuant to Part 28 Rule 28.2 of the Uniform Civil Procedure Rules
Outcome
Separate question answered No; the defendant has not validly exercised the put option in the deed of put and call option dated 31 January 2005.
Legal Topics
['options' 'exercise of Option' 'put and Call Option Deed' 'service of Notices' 'strict Compliance With Contractual Notice Provisions' 'contract for Sale of Land']
['contract Law' 'conveyancing' 'property Law'] ['options' 'exercise of Option' 'put and Call Option Deed' 'service of Notices' 'strict Compliance With Contractual Notice Provisions' 'contract for Sale of Land']

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Procedural Posture

Contract and Conveyancing Dispute Concerning a Put and Call Option Deed for Land / Separate Question Heard in Advance of Other Questions Pursuant to Part 28 Rule 28.2 of the Uniform Civil Procedure Rules

Legal Issues

  1. 1 ['Whether the defendant on 7 July 2006 gave notice of registration of the Plan under the deed.' 'Whether the defendant gave notice of exercise of the put option on 26 July 2006.' "Whether clause 11 of the deed was an exclusive and mandatory method for service of notices, so that service on the purchaser's solicitor rather than the purchaser was ineffective."]

Ratio Decidendi

On the proper construction of the carefully drawn deed, clause 11 required strict compliance for notices under the deed. The deed specified the purchaser's address for notices, made time of the essence, and distinguished between matters that could be done through solicitors and matters requiring notice to the purchaser. Because both the notice of registration of the plan and the purported notice of exercise of the put option were served on the purchaser's solicitor rather than in accordance with clause 11, the defendant did not validly exercise the put option.

Court Disposition

Separate question answered No; the defendant has not validly exercised the put option in the deed of put and call option dated 31 January 2005.

Orders

  • ['Defendant has not validly exercised the put option in the put and call option deed of 31 January 2005.' 'Matter stood over for mention before Young CJ in Eq at 9:30 am on 3 April 2007 for formal short minutes to be brought in.']