Van Minh Lam v Tuan Hung Nguyen [2003] NSWSC 1119

Van Minh Lam v Tuan Hung Nguyen [2003] NSWSC 1119

Because the contractual completion date had ceased to govern after the defendants' defaults and the plaintiff's waiver, the parties were obliged to complete within a reasonable time. The defendants had no contractual entitlement under clause 50 to serve the notice to complete, and under the general law could do so only if the plaintiff had been guilty of unreasonable delay. The delays lay overwhelmingly with the defendants, and the plaintiff's temporary inability to complete arose from finance arrangements becoming stale because of those delays. There had been no unreasonable delay by the plaintiff and none was inevitable or to be anticipated. The notice to complete was therefore...

Jurisdiction
Australia
Judgment Date
02 December 2003
Procedural Posture
Suit for Declaratory Relief, Relief Against Forfeiture and Specific Performance Concerning an Agreement for the Sale of Land / Judgment After Hearing; Question of the Plaintiff's Readiness, Willingness and Ability to Complete Deferred by Consent
Outcome
Purported termination declared ineffective; specific performance to be granted subject to deferred question of the plaintiff's readiness, willingness and ability to complete; costs reserved.
Legal Topics
['specific Performance' 'vendor and Purchaser' 'notice to Complete' 'waiver of Completion Date' 'reasonable Time for Completion' 'relief Against Forfeiture' 'termination of Contract for Sale of Land']
['equity' 'property Law' 'contract Law'] ['specific Performance' 'vendor and Purchaser' 'notice to Complete' 'waiver of Completion Date' 'reasonable Time for Completion' 'relief Against Forfeiture' 'termination of Contract for Sale of Land']

Case Brief

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Procedural Posture

Suit for Declaratory Relief, Relief Against Forfeiture and Specific Performance Concerning an Agreement for the Sale of Land / Judgment After Hearing; Question of the Plaintiff's Readiness, Willingness and Ability to Complete Deferred by Consent

Legal Issues

  1. 1 ['Whether the defendants were entitled to serve a notice to complete on 2 September 2002.' 'Whether the plaintiff had been guilty of unreasonable delay so as to justify the notice to complete.' 'Whether the purported termination of the contract on 19 September 2002 was effective.' 'Whether, if necessary, relief against forfeiture should be granted.' "Whether specific performance should be granted subject to the plaintiff's readiness, willingness and ability to complete."]

Ratio Decidendi

Because the contractual completion date had ceased to govern after the defendants' defaults and the plaintiff's waiver, the parties were obliged to complete within a reasonable time. The defendants had no contractual entitlement under clause 50 to serve the notice to complete, and under the general law could do so only if the plaintiff had been guilty of unreasonable delay. The delays lay overwhelmingly with the defendants, and the plaintiff's temporary inability to complete arose from finance arrangements becoming stale because of those delays. There had been no unreasonable delay by the plaintiff and none was inevitable or to be anticipated. The notice to complete was therefore...

Court Disposition

Purported termination declared ineffective; specific performance to be granted subject to deferred question of the plaintiff's readiness, willingness and ability to complete; costs reserved.

Orders

  • ['Declaration to be made that the purported termination of the contract pursuant to the notice to complete was ineffective.' "Subject to the deferred question of the plaintiff's readiness, willingness and ability to complete the contract, specific performance to be granted." 'Costs reserved.']