9 Nov 2017
The recall application was declined because the omitted argument about automatic expiry and implied recovery conflicted with other findings of contractual uncertainty and raised issues unsuitable for summary judgment; it did not constitute the narrow 'very special reason' required to recall judgment and recalling would serve no real purpose.
25 Jun 2015
Objectively tender would not have been futile: there was time and practical means to effect settlement by electronic transfer or by use of bank cheques and a temporary force limit on the vendor's solicitor trust account; the Official Assignee failed to prove that Kingston or its solicitor made tender clearly futile, therefore Kingston validly cancelled the option and did not repudiate the contract.
19 Oct 2010
Although Calderbank offers made in the District Court are not governed by High Court Rules, they may be taken into account for policy reasons, but in this case the District Court offer could not be meaningfully compared to the appeal judgment and therefore did not affect the High Court costs decision; costs follow the event and the appellant is entitled to 2B costs of $2,720 plus disbursements; on the substantive point time was not of the essence but an implied term of reasonable time applies and damages may follow.
11 Dec 2008
The court held that on the material before it the purchaser had a reasonably arguable case because the vendor's delay in providing relevant tenancy information and the vendor's 23 July communications were capable of amounting to a waiver or estoppel of the 24 July deadline, so the contract may not have lapsed and the caveat should not be permitted to lapse.
14 Oct 2008
Clauses 12.1 and 8.7 impose distinct obligations: the vendor was obliged to obtain the land use consent (cl 12.1) and, separately, under cl 8.7(4) was obliged to serve notice of fulfilment; failure to give that notice entitled the purchaser to cancel under cl 8.7(5) and recover the deposit, therefore the District Court's judgment was upheld and the appeal dismissed.
25 Sept 2008
The ASA was an interdependent "all or nothing" settlement; all parties were constrained and empowered by the "time is of the essence" term and each had an independent right to cancel if the 4pm deadline was missed; Big Sky could not unilaterally waive the essentiality of time on behalf of other parties and in any event Big Sky did not, by its conduct, waive the 4pm deadline; accordingly the contract was validly cancelled at 6.05pm on 31 May 2007 and the appeal is dismissed.
23 Feb 2006
The defendants' 14 December letter, by agreeing to attend to the identified defects and requesting confirmation without fixing a new deadline or reserving a right to cancel, constituted conduct amounting to an extension/waiver of time such that time ceased to be of the essence; absent restoration of essentiality or provision of a further reasonable time, the defendants' 20 December purported termination was ineffective, so summary judgment for the plaintiffs and the relief sought follows.