Bone v Wallalong Investments (No.2) [2012] NSWSC 203

Bone v Wallalong Investments (No.2) [2012] NSWSC 203

Mr Bone was entitled to give the notice to complete, because the YACF right of first refusal had been disclosed and the answer to requisition 20 did not disentitle him. However, he was not ready, willing and able to complete in accordance with the notice on 12 March 2010 because the attempted change of place for settlement from Broadmeadow to Sydney on about 24 hours' notice was not reasonable notice under cl 16.12, and he did not attend at the place appointed by the notice. The notice of termination was therefore invalid and Mr Bone was not entitled to loss of bargain damages. The directors nevertheless gave effective guarantees by executing and delivering the deed of variation as...

Jurisdiction
Australia
Judgment Date
12 March 2012
Procedural Posture
Equity Division Commercial List Proceeding Concerning a Contract for Sale of Land, Guarantees and Damages / Principal Judgment After Hearing; Proceedings Stood Over for Orders
Outcome
Plaintiff entitled to judgment against all defendants for arrears of interest. Stand over for orders.
Legal Topics
['notice to Complete' 'readiness, Willingness and Ability to Complete' 'termination of Contract for Sale of Land' "directors' Guarantees" 'interest on Unpaid Purchase Price' 'loss of Bargain Damages' 'leave to Amend' 'contribution and Exoneration Between Guarantors']
['vendor and Purchaser' 'guarantee' 'damages' 'civil Procedure'] ['notice to Complete' 'readiness, Willingness and Ability to Complete' 'termination of Contract for Sale of Land' "directors' Guarantees" 'interest on Unpaid Purchase Price' 'loss of Bargain Damages' 'leave to Amend' 'contribution and Exoneration Between Guarantors']

Case Brief

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Procedural Posture

Equity Division Commercial List Proceeding Concerning a Contract for Sale of Land, Guarantees and Damages / Principal Judgment After Hearing; Proceedings Stood Over for Orders

Legal Issues

  1. 1 ['Whether Mr Bone was entitled to give a notice to complete on 15 February 2010.' 'Whether Mr Bone was in a position to complete, or ready, willing and able to complete, on 12 March 2010.' 'Whether Mr Bone validly terminated the contract by service of the notice of termination.' "Whether the directors gave enforceable guarantees to Mr Bone of Wallalong's obligations under the contract as varied." 'Whether Wallalong was liable to pay interest under special condition 4 from the extended completion date until termination.' 'What amount of liability was proved.' 'Whether leave to amend should be granted or refused in respect of the proposed amendments.']

Ratio Decidendi

Mr Bone was entitled to give the notice to complete, because the YACF right of first refusal had been disclosed and the answer to requisition 20 did not disentitle him. However, he was not ready, willing and able to complete in accordance with the notice on 12 March 2010 because the attempted change of place for settlement from Broadmeadow to Sydney on about 24 hours' notice was not reasonable notice under cl 16.12, and he did not attend at the place appointed by the notice. The notice of termination was therefore invalid and Mr Bone was not entitled to loss of bargain damages. The directors nevertheless gave effective guarantees by executing and delivering the deed of variation as...

Court Disposition

Plaintiff entitled to judgment against all defendants for arrears of interest. Stand over for orders.

Orders

  • ["Mr Tomkins' application for leave to withdraw the pleading and amend to allege abandonment was rejected." 'Mr Bone was granted leave to amend para 48 by deleting the words "it was a term of the Contract that".' 'The proceedings were stood over to 10:00am on 26 March 2012 for the parties to bring in short minutes...