Generosity Beverages Pty Ltd v Mare Custodian Company Pty Ltd [2022] NSWSC 484

Generosity Beverages Pty Ltd v Mare Custodian Company Pty Ltd [2022] NSWSC 484

The plaintiff's valid Notice to Complete made time of the essence for completion by 8 April 2021 and bound both parties. The plaintiff deliberately did not proceed to completion by the PEXA cut-off time, and the defendant's conduct concerning the keys, asset matters, $119, alleged fixtures, rubbish and correspondence did not breach the land contract, materially contribute to the plaintiff's failure to complete, or show that the defendant was not ready, willing and able to complete. The plaintiff's failure to complete on 8 April 2021 was therefore a breach in an essential respect, entitling the defendant under cl 9 to terminate by notice on 12 April 2021 and recover the deposit under cl 9.1.

Jurisdiction
Australia
Judgment Date
26 April 2022
Procedural Posture
Equity Proceedings Concerning Specific Performance of a Contract for the Sale of Land and Cross Claim for Declarations of Valid Termination and Entitlement to Deposit / Principal Judgment After Hearing
Outcome
Plaintiff's Summons dismissed; defendant/cross-claimant obtained declarations that it validly terminated the contract and is entitled to the deposit; caveat ordered withdrawn; plaintiff/cross-defendant ordered to pay costs.
Legal Topics
['contract for the Sale of Land' 'notice to Complete' 'time of the Essence' 'specific Performance' 'termination for Purchaser Default' 'deposit Forfeiture' 'ready, Willing and Able to Complete' 'final Inspection' 'vacant Possession' 'pexa Electronic Settlement']
['land Law' 'contract Law' 'equity' 'conveyancing'] ['contract for the Sale of Land' 'notice to Complete' 'time of the Essence' 'specific Performance' 'termination for Purchaser Default' 'deposit Forfeiture' 'ready, Willing and Able to Complete' 'final Inspection' 'vacant Possession' 'pexa Electronic Settlement']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Specific Performance of a Contract for the Sale of Land and Cross Claim for Declarations of Valid Termination and Entitlement to Deposit / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the defendant's Notice of Termination given on 12 April 2021 was effective to terminate the contract for the plaintiff's breach." "Whether the plaintiff's Notice to Complete made time of the essence for completion by 8 April 2021 and bound both parties." 'Whether the defendant breached cl 12.3 of the contract by failing to provide keys in time to enable a final inspection.' "Whether any conduct of the defendant materially contributed to the plaintiff's failure to complete on 8 April 2021." 'Whether the defendant was ready, willing and able to complete the contract on 8 April 2021.' 'Whether the defendant was entitled to recover the deposit.']

Ratio Decidendi

The plaintiff's valid Notice to Complete made time of the essence for completion by 8 April 2021 and bound both parties. The plaintiff deliberately did not proceed to completion by the PEXA cut-off time, and the defendant's conduct concerning the keys, asset matters, $119, alleged fixtures, rubbish and correspondence did not breach the land contract, materially contribute to the plaintiff's failure to complete, or show that the defendant was not ready, willing and able to complete. The plaintiff's failure to complete on 8 April 2021 was therefore a breach in an essential respect, entitling the defendant under cl 9 to terminate by notice on 12 April 2021 and recover the deposit under cl 9.1.

Court Disposition

Plaintiff's Summons dismissed; defendant/cross-claimant obtained declarations that it validly terminated the contract and is entitled to the deposit; caveat ordered withdrawn; plaintiff/cross-defendant ordered to pay costs.

Orders

  • ['Declare that on 12 April 2021 the defendant/cross-claimant validly terminated the contract for sale of land dated 5 February 2021 entered into with the plaintiff/cross-defendant, pursuant to cl 9 of the contract;' 'Declare that the defendant/cross-claimant is entitled to the deposit of $295,000 that was paid by...