Lee v Lee [2022] NSWSC 181

Procedural Posture

Equity Proceeding Seeking a Declaration and Specific Performance of a Contract for the Sale of Land / Hearing of Summons Filed 15 June 2021; Ex Tempore Principal Judgment

Legal Issues

1. 1 ['Whether Special Condition 56 was an essential term or condition of the contract such that breach entitled the vendor to terminate' "Whether the plaintiff's breach of Special Condition 56 was induced by the defendant's assertion that no binding contract existed" "Whether the defendant's failure to complete by the date specified in a notice to complete absolved the plaintiff from consequences of her breach" "Whether the defendant's lack of readiness, willingness and ability to complete prevented reliance on an express contractual right to terminate" 'Whether the defendant lost any right to terminate by failing to exercise it within a reasonable time']

Ratio Decidendi

Special Condition 56 was an essential term. The plaintiff breached it by taking steps to lodge a caveat claiming an interest under the contract, which was recorded on title. The defendant's assertion that no binding contract existed did not induce or invite that breach and did not absolve the plaintiff from the obligation under Special Condition 56. Because the defendant exercised an express contractual right to terminate under clause 9 for breach of a non-reciprocal purchaser obligation, the defendant's lack of readiness, willingness and ability to complete did not prevent termination. Clause 9 contained no express or implied requirement that termination occur within a reasonable time,...

Court Disposition

Summons dismissed with costs.

Orders

• ['The Summons be dismissed.' "The plaintiff pay the defendant's costs of the proceedings."]