K & K Real Estate Pty Ltd v Adellos Pty Ltd (in liquidation) [2010] NSWSC 1212

K & K Real Estate Pty Ltd v Adellos Pty Ltd (in liquidation) [2010] NSWSC 1212

The defendants established on the balance of probabilities that they were ready, willing and able to complete when the notice to complete was served and were not in breach in a way that invalidated the notice. The plaintiff had indicated it lacked funds and would not complete, so the defendants were absolved from nugatory steps such as removing caveats and preparing settlement documents for 12 February 2010. Neither the 15 February 2010 letter nor the later negotiations were sufficiently unequivocal or inconsistent with the right to terminate to amount to affirmation. The defendants validly terminated the contract on 8 July 2010, so specific performance was unavailable, and retention of...

Jurisdiction
Australia
Judgment Date
22 October 2010
Procedural Posture
Suit for Specific Performance of a Contract for the Sale of Land / Principal Judgment After Hearing
Outcome
Claim for specific performance refused; claim for return of deposit refused; short minutes to be brought in.
Legal Topics
['specific Performance' 'sale of Land' 'notice to Complete' 'termination of Contract' 'election and Affirmation' 'return of Deposit' 'caveats']
['equity' 'contract' 'property Law'] ['specific Performance' 'sale of Land' 'notice to Complete' 'termination of Contract' 'election and Affirmation' 'return of Deposit' 'caveats']

Case Brief

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Procedural Posture

Suit for Specific Performance of a Contract for the Sale of Land / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendants were ready, willing and able to complete when they served the notice to complete on 27 January 2010.' 'Whether the notice to complete was ineffective because the defendants were in breach of contract when it was given.' 'Whether the defendants intimated that the plaintiff need not complete on 12 February 2010.' 'Whether the defendants were ready, willing and able to complete on 12 February 2010 despite caveats and unprepared documents.' 'Whether the defendants affirmed the contract by the letter of 15 February 2010.' 'Whether the defendants affirmed the contract by engaging in negotiations up to 5 July 2010.' 'Whether the plaintiff should receive return of the deposit under s 55(2A) of the Conveyancing Act 1919.']

Ratio Decidendi

The defendants established on the balance of probabilities that they were ready, willing and able to complete when the notice to complete was served and were not in breach in a way that invalidated the notice. The plaintiff had indicated it lacked funds and would not complete, so the defendants were absolved from nugatory steps such as removing caveats and preparing settlement documents for 12 February 2010. Neither the 15 February 2010 letter nor the later negotiations were sufficiently unequivocal or inconsistent with the right to terminate to amount to affirmation. The defendants validly terminated the contract on 8 July 2010, so specific performance was unavailable, and retention of...

Court Disposition

Claim for specific performance refused; claim for return of deposit refused; short minutes to be brought in.

Orders

  • ['Claim for specific performance refused.' "The contract is at an end and is not available to be specifically enforced in the plaintiff's favour." 'Return of the deposit under s 55(2A) of the Conveyancing Act 1919 refused.' 'Short minutes should be brought in to give effect to this decision.']