Fekala Pty. Ltd. v. Castle Constructions Pty. Ltd. [2002] NSWCA 297

Fekala Pty. Ltd. v. Castle Constructions Pty. Ltd. [2002] NSWCA 297

The Vendors were not permitted to argue for the first time on appeal that their own Notice to Complete was invalid because that point could have led to evidence on estoppel below. In any event, by serving a Notice to Complete requiring completion on 29 August 2001 without requiring submission of a transfer, the Vendors waived compliance with cl.4.1, so the Purchaser's late transfer did not excuse the Vendors' inability to complete. A valid Notice to Complete binds both parties and cannot be unilaterally extended by the party giving it. The Purchaser's termination was therefore effective and the appeal failed.

Jurisdiction
Australia
Judgment Date
07 August 2002
Procedural Posture
Appeal in Conveyancing Contract Proceedings / Appeal From Orders of Windeyer J in the Supreme Court, Equity Division
Outcome
Appeal dismissed with costs.
Legal Topics
['notice to Complete' 'time of the Essence' 'waiver of Contractual Requirements' 'unilateral Extension of Notice to Complete' 'termination of Contract for Sale of Land' 'deposit Forfeiture']
['contracts' 'conveyancing' 'vendor and Purchaser'] ['notice to Complete' 'time of the Essence' 'waiver of Contractual Requirements' 'unilateral Extension of Notice to Complete' 'termination of Contract for Sale of Land' 'deposit Forfeiture']

Case Brief

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Procedural Posture

Appeal in Conveyancing Contract Proceedings / Appeal From Orders of Windeyer J in the Supreme Court, Equity Division

Legal Issues

  1. 1 ['Whether the Vendors could for the first time on appeal allege that their own Notice to Complete was invalid.' "Whether service of the Notice to Complete waived the Purchaser's obligation under cl.4.1 to serve the form of transfer at least 14 days before completion." "Whether the Vendors could rely on the Purchaser's late submission of the transfer to excuse their own failure to complete on the date specified in the Notice to Complete." 'Whether a party who gives a valid Notice to Complete can unilaterally extend the time specified in it.' 'Whether indemnity costs should be ordered on the basis of correspondence inviting consent to dismissal of the appeal.']

Ratio Decidendi

The Vendors were not permitted to argue for the first time on appeal that their own Notice to Complete was invalid because that point could have led to evidence on estoppel below. In any event, by serving a Notice to Complete requiring completion on 29 August 2001 without requiring submission of a transfer, the Vendors waived compliance with cl.4.1, so the Purchaser's late transfer did not excuse the Vendors' inability to complete. A valid Notice to Complete binds both parties and cannot be unilaterally extended by the party giving it. The Purchaser's termination was therefore effective and the appeal failed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']