Carrapetta v Rado [2012] NSWCA 202

Carrapetta v Rado [2012] NSWCA 202

The vendor was not in default when she served the notice to complete. Before 1 December 2011 she had reserved rights about handwritten amendments but also stated that she relied on the terms of the contract, and she did not unequivocally assert that she would complete only on payment of 12% interest. The notice itself required completion according to the contract and did not demand an improper interest component. The later settlement statement claiming 12% interest was sent after service of the notice and did not retrospectively affect the validity of the notice. The primary judge was correct to declare that the contract was validly terminated after the appellants failed to complete.

Jurisdiction
Australia
Judgment Date
03 July 2012
Procedural Posture
Conveyancing Vendor and Purchaser Appeal / Appeal From a Decision of Nicholas J in the Equity Division; Final Determination in the Court of Appeal
Outcome
Appeal dismissed.
Legal Topics
['completion of Contract for Sale of Land' 'notice to Complete' 'time of the Essence' 'vendor Default' 'settlement Statement' 'interest on Balance of Purchase Moneys' 'termination of Contract']
['conveyancing' 'contract Law' 'equity'] ['completion of Contract for Sale of Land' 'notice to Complete' 'time of the Essence' 'vendor Default' 'settlement Statement' 'interest on Balance of Purchase Moneys' 'termination of Contract']

Case Brief

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Procedural Posture

Conveyancing Vendor and Purchaser Appeal / Appeal From a Decision of Nicholas J in the Equity Division; Final Determination in the Court of Appeal

Legal Issues

  1. 1 ['Whether the respondent vendor was entitled to serve a notice to complete on 1 December 2011.' 'Whether the vendor was in default or not ready, willing and able because of a position concerning interest at 12% rather than 8%.' 'Whether the settlement statement sent after service of the notice to complete affected the validity of the notice.' "Whether the primary judge's reference to the purchasers' readiness, willingness and ability affected the result."]

Ratio Decidendi

The vendor was not in default when she served the notice to complete. Before 1 December 2011 she had reserved rights about handwritten amendments but also stated that she relied on the terms of the contract, and she did not unequivocally assert that she would complete only on payment of 12% interest. The notice itself required completion according to the contract and did not demand an improper interest component. The later settlement statement claiming 12% interest was sent after service of the notice and did not retrospectively affect the validity of the notice. The primary judge was correct to declare that the contract was validly terminated after the appellants failed to complete.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' "That the appellants pay the respondent's costs of the appeal."]