Meares Nominees Pty Ltd & Ors v Permanent Custodians Ltd [2009] NSWSC 720

Meares Nominees Pty Ltd & Ors v Permanent Custodians Ltd [2009] NSWSC 720

Clause 7 of the Deed did not create a new debt but provided that part of the existing mortgage debt would be repaid at precisely defined times. Clauses 8 and 9, read with recital 6, made the Defendant's release and acceptance of an accord and satisfaction conditional upon those payments being made at the stipulated times. Certainty of time for payment was the essence of the benefit for which the Defendant contracted. Because the Plaintiffs did not pay $2M by 5pm on 12 June 2009, the condition precedent to the operation of clause 9 was not fulfilled and the Defendant never became obliged to accept the accord and satisfaction or release the debt.

Jurisdiction
Australia
Judgment Date
24 July 2009
Procedural Posture
Equity Division Proceedings Seeking a Declaration That a Deed of Settlement Remains Valid and Binding and an Order for Specific Performance / Ex Tempore Principal Judgment on the Plaintiffs' Summons
Outcome
Summons dismissed.
Legal Topics
['accord and Satisfaction' 'construction of Deed' 'condition Precedent' 'time of the Essence' 'specific Performance' 'mortgagee Power of Sale']
['contract' 'equity' 'mortgages'] ['accord and Satisfaction' 'construction of Deed' 'condition Precedent' 'time of the Essence' 'specific Performance' 'mortgagee Power of Sale']

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Procedural Posture

Equity Division Proceedings Seeking a Declaration That a Deed of Settlement Remains Valid and Binding and an Order for Specific Performance / Ex Tempore Principal Judgment on the Plaintiffs' Summons

Legal Issues

  1. 1 ["Whether repayment of the second payment of $2M by 5pm on 12 June 2009 was a condition precedent to the Defendant's obligation to accept an accord and satisfaction and release the Plaintiffs from the mortgage debts." 'Whether equitable rules as to time being of the essence applied so that the Plaintiffs could obtain specific performance after failing to make the second payment by the stipulated time.']

Ratio Decidendi

Clause 7 of the Deed did not create a new debt but provided that part of the existing mortgage debt would be repaid at precisely defined times. Clauses 8 and 9, read with recital 6, made the Defendant's release and acceptance of an accord and satisfaction conditional upon those payments being made at the stipulated times. Certainty of time for payment was the essence of the benefit for which the Defendant contracted. Because the Plaintiffs did not pay $2M by 5pm on 12 June 2009, the condition precedent to the operation of clause 9 was not fulfilled and the Defendant never became obliged to accept the accord and satisfaction or release the debt.

Court Disposition

Summons dismissed.

Orders

  • ["The Plaintiffs' Summons is dismissed with costs." 'Upon the Plaintiffs, by their Counsel, giving the usual undertaking as to damages, up to 5pm on 31 July 2009 the Defendant, by itself, its servants or agents, is restrained from exercising or purporting to exercise the power of sale in registered mortgage numbers...