Hadco Constructions v McIntosh [2003] NSWSC 689

Hadco Constructions v McIntosh [2003] NSWSC 689

The option was validly exercised because the written addition of "or nominee" brought the agreement into line with the parties' agreed terms, the six-month extension operated under clause 12 without any new agreement, the mistaken failure to amend the contract purchase price to $910,000 was obvious and did not prevent acceptance of the irrevocable offer, and s66ZG(1)(a) of the Conveyancing Act 1919 did not require the nominee to have signed the option where the grantee who could nominate had signed. The defendants' asserted termination failed, so the plaintiff was entitled to declarations and specific performance.

Jurisdiction
Australia
Judgment Date
30 July 2003
Procedural Posture
Equity Division Proceeding by Summons Seeking Declarations and Specific Performance Concerning an Option to Purchase Property, With a Cross Claim for a Declaration of Valid Termination / Final Judgment
Outcome
Order for specific performance; declarations made in favour of the plaintiff; cross-claim dismissed; defendants ordered to pay the plaintiff's costs and cross-claimant ordered to pay the cross-defendant's costs.
Legal Topics
['vendor and Purchaser' 'option to Purchase Residential Property' 'specific Performance' 'nomination Under Option Agreement' 'rectification or Agreed Variation' 'exercise of Option' 'conveyancing Act 1919 Option Requirements']
['property Law' 'contract Law' 'equity'] ['vendor and Purchaser' 'option to Purchase Residential Property' 'specific Performance' 'nomination Under Option Agreement' 'rectification or Agreed Variation' 'exercise of Option' 'conveyancing Act 1919 Option Requirements']

Case Brief

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Procedural Posture

Equity Division Proceeding by Summons Seeking Declarations and Specific Performance Concerning an Option to Purchase Property, With a Cross Claim for a Declaration of Valid Termination / Final Judgment

Legal Issues

  1. 1 ['Whether an option to purchase 281 Mona Vale Road, St Ives was validly exercised' 'Whether the words "or nominee" were included by agreed variation or to bring the written document into line with agreed terms, and whether further execution was required' 'Whether clause 12 required a new agreement to extend the option period by six months' 'Whether the failure to amend the purchase price in the contract signed by the nominee from $900,000 to $910,000 prevented valid exercise of the option' 'Whether an option for purchase of residential property could be validly exercised by a nominee who did not sign the option agreement under s66ZG(1)(a) of the Conveyancing Act 1919' 'Whether the defendants validly terminated any contract arising from exercise of the option']

Ratio Decidendi

The option was validly exercised because the written addition of "or nominee" brought the agreement into line with the parties' agreed terms, the six-month extension operated under clause 12 without any new agreement, the mistaken failure to amend the contract purchase price to $910,000 was obvious and did not prevent acceptance of the irrevocable offer, and s66ZG(1)(a) of the Conveyancing Act 1919 did not require the nominee to have signed the option where the grantee who could nominate had signed. The defendants' asserted termination failed, so the plaintiff was entitled to declarations and specific performance.

Court Disposition

Order for specific performance; declarations made in favour of the plaintiff; cross-claim dismissed; defendants ordered to pay the plaintiff's costs and cross-claimant ordered to pay the cross-defendant's costs.

Orders

  • ['Declaration as sought in paragraph 1 of the summons.' 'Declaration as sought in paragraph 2 of the summons with the addition of the words "but with the purchase price amended to $910,000 – and the deposit amended to $91,000".' 'Declaration as sought in paragraph 3 of the summons.' 'Order as sought in paragraph 4...