Hawkes Menangle Pty Ltd v Brennan [2023] NSWSC 1095

Hawkes Menangle Pty Ltd v Brennan [2023] NSWSC 1095

The contractual completion date was 9 June 2022, not 8 June 2022, because the 18-month period after the contract date had to expire before completion could be required. The defendants failed to prove any binding written variation bringing the completion date forward: the communications and PEXA entries reflected an erroneous view of the contract rather than an intention to vary it, and the purchaser's solicitor had no shown authority to vary the contract. Because the notice to complete was served before 3:30pm on the actual completion date, it was not authorised by cl 34.1 and was invalid. The termination based on non-compliance with that invalid notice was also invalid, so the contract...

Jurisdiction
Australia
Judgment Date
08 September 2023
Procedural Posture
Equity Real Property List Proceeding for Specific Performance of a Contract for Sale of Land / Principal Judgment After Hearing
Outcome
The defendants' termination of the contract was held ineffective; the contract was valid and subsisting and remained on foot. The plaintiff was entitled to declarations, specific performance and costs, with short minutes to be submitted.
Legal Topics
['contract for Sale of Land' 'notice to Complete' 'completion Date' 'variation of Contract' 'electronic Conveyancing' 'specific Performance' 'land Tax Certificate']
['land Law' 'conveyancing' 'contract Law' 'equity'] ['contract for Sale of Land' 'notice to Complete' 'completion Date' 'variation of Contract' 'electronic Conveyancing' 'specific Performance' 'land Tax Certificate']

Case Brief

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Procedural Posture

Equity Real Property List Proceeding for Specific Performance of a Contract for Sale of Land / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the date for completion under the contract was 8 June 2022 or 9 June 2022.' 'Whether the parties varied the contract to alter the completion date to 8 June 2022.' 'Whether the notice to complete served on 9 June 2022 was invalid because it was served before the contractual right to serve such a notice had accrued.' 'Whether the notice to complete was invalid because it was served within 14 days after service of a current land tax certificate.']

Ratio Decidendi

The contractual completion date was 9 June 2022, not 8 June 2022, because the 18-month period after the contract date had to expire before completion could be required. The defendants failed to prove any binding written variation bringing the completion date forward: the communications and PEXA entries reflected an erroneous view of the contract rather than an intention to vary it, and the purchaser's solicitor had no shown authority to vary the contract. Because the notice to complete was served before 3:30pm on the actual completion date, it was not authorised by cl 34.1 and was invalid. The termination based on non-compliance with that invalid notice was also invalid, so the contract...

Court Disposition

The defendants' termination of the contract was held ineffective; the contract was valid and subsisting and remained on foot. The plaintiff was entitled to declarations, specific performance and costs, with short minutes to be submitted.

Orders

  • ['The parties are to confer and within seven days submit a form of short minutes of order to give effect to the reasons.' "The defendants should pay the plaintiff's costs of the proceedings."]