Ng v Chong [2005] NSWSC 270

Ng v Chong [2005] NSWSC 270

The deed of novation was binding because the defendant could read English and failed to establish non est factum. By executing it, the defendant gave away any accrued right to issue a notice to complete immediately, and the plaintiffs were not in unreasonable delay when the notice was served. The notice was also invalid because it allowed only 13 days without strong circumstances justifying less than 14 days and because it was directed to only two of the three purchasers. The plaintiffs were not obliged to disclose their attitude to the notice's validity and were not estopped from relying on its defects. There was no repudiation and no laches sufficient to defeat equitable relief....

Jurisdiction
Australia
Judgment Date
31 March 2005
Procedural Posture
Equity Division Proceedings for Specific Performance of a Contract for Sale of Land and Cross Claim Against the Vendor's Solicitor / Final Judgment After Hearing
Outcome
Purported termination invalid; contract to be specifically performed; judgment for the plaintiffs on the cross-claim against them; some breaches by the solicitor established but no substantial damages recovered against him.
Legal Topics
['notice to Complete' 'time of the Essence' 'specific Performance' 'non Est Factum' 'deed of Novation' 'estoppel by Representation' 'estoppel by Convention' 'laches, Acquiescence and Delay' "solicitor's Breach of Retainer" 'causation of Loss']
['conveyancing' 'equity' 'contract Law' 'estoppel' 'professional Negligence' 'solicitor and Client'] ['notice to Complete' 'time of the Essence' 'specific Performance' 'non Est Factum' 'deed of Novation' 'estoppel by Representation' 'estoppel by Convention' 'laches, Acquiescence and Delay' "solicitor's Breach of Retainer" 'causation of Loss']

Case Brief

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Procedural Posture

Equity Division Proceedings for Specific Performance of a Contract for Sale of Land and Cross Claim Against the Vendor's Solicitor / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the deed of novation adding the third plaintiff as purchaser was binding or the defence of non est factum was made out.' 'If the deed of novation was binding, whether it affected the time at which a notice to complete could be given.' 'Whether the notice to complete given by the defendant was valid.' 'Whether the plaintiffs were estopped by their conduct or silence from denying the validity of the notice to complete.' 'Whether the plaintiffs repudiated the contract.' 'Whether the contract was validly terminated.' 'Whether specific performance should be refused for laches, acquiescence or delay.' 'Whether damages should be awarded under s 68 of the Supreme Court Act 1970 if specific performance were refused.' 'Whether relief against forfeiture or return of the deposit under s 55(2A) of the Conveyancing Act 1919 arose if the contract had been validly terminated.' "Whether the vendor's solicitor breached his retainer or duty of care and whether any such breach caused compensable loss."]

Ratio Decidendi

The deed of novation was binding because the defendant could read English and failed to establish non est factum. By executing it, the defendant gave away any accrued right to issue a notice to complete immediately, and the plaintiffs were not in unreasonable delay when the notice was served. The notice was also invalid because it allowed only 13 days without strong circumstances justifying less than 14 days and because it was directed to only two of the three purchasers. The plaintiffs were not obliged to disclose their attitude to the notice's validity and were not estopped from relying on its defects. There was no repudiation and no laches sufficient to defeat equitable relief....

Court Disposition

Purported termination invalid; contract to be specifically performed; judgment for the plaintiffs on the cross-claim against them; some breaches by the solicitor established but no substantial damages recovered against him.

Orders

  • ['The plaintiffs are entitled to specific performance of the contract by the defendant.' "There will be judgment for the plaintiffs on the defendant's cross-claim against them." 'The defendant fails in his claims to recover any substantial damages from the fourth cross defendant.' 'The application to amend the...