Lopiron Pty Limited v Css Investments Pty Limited [1986] ACTSC 121 (24 December 1986)

SUPREME COURT OF THE ACT

LOPIRON PTY LIMITED v. C.S.S. INVESTMENTS PTY LIMITED
S.C. Nos. 401 and 418 of 1986
Agreement for Sale of Crown Lease

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Agreement for Sale of Crown Lease - Proposal that it be sub-divided under Real Property (Unit Titles) Ordinance 1970 - Conditioned that if Units Plan not be registered by named date either party could rescind within 14 days by notice - Implied condition that each party should do all it was reasonably and properly required to do to ensure registration - Notice of rescission given by vendor - Whether it had complied with implied condition - Election - Whether contract affirmed after named date.

Real Property Ordinance 1925: ss.67(1), 86(1) and (2) and 89

Butts v. O'Dwyer [1952] HCA 74; (1952) 87 CLR 267

Earle Cameron (Industrial) Pty. Ltd. v. Comprador Properties Pty. Ltd., Hodgson J, 22 November 1985 unreported.

Sargent v. A.S.L. Developments Ltd. [1974] HCA 40; (1974) 131 CLR 634.

Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418

Cutilio v. De Blasio (1974) 9 SASR 108

HEARING

CANBERRA
24:12:1986

ORDER

Upon the true construction of the written Agreement for Sale (the Agreement) dated 26 September 1985 for the sale by the defendant to the plaintiff for the sum of $2,415,000.00 of all the residue unexpired of the leases in respect of all the units in Units Plan No. 392 erected on Block 2, Section 65, Weston in the Australian Capital Territory and in the events which have happened the defendant was not entitled to rescind the Agreement as it purported to do.

The Agreement ought to be specifically performed and carried into execution.

S.C. No. 418 of 1986

The defendant specifically perform and carry into execution the Agreement so far as the same remains to be performed.

The Registrar -

(a) fix a time and place for completion of the

Agreement;

(b) inquire and certify as to the sum which upon
completion ought to be paid by the plaintiff to
the defendant.

(a) the defendant attend at the time and place so
fixed for completion;

(b) upon the payment by the plaintiff to the defendant
of the sum certified under Order 2(b) above the
defendant deliver to the plaintiff a duly executed
Memorandum of Transfer in respect of all the
property the subject of the Agreement and all
other duly executed forms necessary to transfer
the said property to the plaintiff together with
all documents of title thereto.

In addition there be judgment for the plaintiff for damages for breach of

contract to be assessed.

The defendant pay the plaintiff's costs of and incidental to the action.

DECISION

By an agreement made in writing on 26 September 1985 and described as "Agreement For Sale (Unit Title)" C.S.S. Investments Pty Limited (the defendant) agreed to sell and Lopiron Pty Limited (the plaintiff) agreed to purchase what was described in the agreement as "Unit Title: All the residue unexpired of the leases in respect of all the units in the draft Units Plan attached (t)hereto erected on Block 2 Section 65 at Weston in the Australian Capital Territory for the sum of $2,415,000.00."

2. Sub-clauses (1) and (2) of Clause 17 of the agreement read:-

"Unregistered Units Plan:

(1) This clause applies if at the date of
this agreement, the Units Plan has not been
registered.

(2) If the Units Plan is not registered by
the date set out in Schedule Item 12 either
the Seller or the Buyer may by written notice
served on the other within 14 days thereafter
rescind this agreement and thereupon the
provisions of clause 23 shall apply."

Schedule Item 12 read:

"Date for registration of Units Plan if not
already registered 31st January 1986"

Clause 23 of the agreement read:

"23. Rescission of Agreement:

If this agreement is rescinded (as distinct
from terminated) pursuant to any expressed
right to rescind (as distinct from a right to
terminate) conferred by this agreement the
rescission shall be deemed to be a rescission
from the beginning and:

(1) the deposit and all other money paid by
the Buyer hereunder shall be refunded to him,
and

(2) neither party shall be liable to pay the
other any sum for damages, costs or
expenses."

3. The Units Plan was not registered by the Registrar of Titles by 31 January 1986. It was registered on 7 February 1986 and Certificates of Title have now issued and bear registration numbers Volume 997 Folios 1 - 15 inclusive.

4. On 14 February 1986 Wayne Francis Barker, solicitor for the defendant, acting on instructions given by a director of it, caused to be delivered to the solicitors then acting for the plaintiff a letter enclosing a notice of rescission. The notice recited briefly the making of the agreement, the agreed date for registration of the Units Plan, the fact that the Units Plan was not registered by that date and that the defendant wished to exercise its right to rescind the agreement. It then went on to say:-

"NOW TAKE NOTICE

In pursuance of Clause 17(2) of the Agreement
the Seller hereby gives notice that it
rescinds the Agreement the Units Plan not
having been registered by the date set out in
Schedule Item 12 of the Agreement."

No challenge to the formal validity of the notice of rescission is made.

5. The letter accompanying the notice of rescission advised that the defendant's solicitors were making arrangement for the return of the deposit to their trust account and "one half of the interest".

6. By a caveat dated 19 February 1986 but lodged on 20 February 1986 the plaintiff claimed "estate or interest as equitable crown lessee by virtue of an agreement for sale dated 26 September 1985 made between the registered proprietor CSS Investments Pty Ltd as seller and the caveator as buyer" and forbad the registration of any memorandum of transfer or instrument effecting the said land except in the usual circumstances.

7. On 11 March 1986 the plaintiff began action No. S.C. 401 of 1986 claiming that the defendant was not entitled to rescind the agreement, as it had purported to do, and seeking specific performance. A statement of claim was delivered on 19 March 1986 but, in the meantime, on 12 March 1986, in action No. S.C. 418 of 1986, the defendant took out an originating summons by which it sought a declaration that it had rescinded the agreement and an order that the plaintiff show cause why the caveat above referred to should not be removed. On 2 May 1986 an order consolidating the two suits was made. The plaintiff had the carriage of the consolidated action.

8. There was another agreement entered into on 26 September 1985. By a deed made between it and Ante Ivankovic and John Segon, directors of the defendant, the plaintiff covenanted that, if at any time within twelve months of completion of the agreement for sale in respect of Block 2, Section 65 Weston it should wish to sell any one or more of Units 9, 13 or 14 in the relevant Units Plan Messrs Ivankovic and Segon should have the right to purchase such a unit upon the conditions set out in the deed. Unit 9 was of particular concern to Mr Segon because he had been engaged in a dispute with Peter Alex Stefopoulos, the sub-lessee from the defendant of the part of the building the subject of the agreement for sale, which eventually became Unit 9. Mr Segon wished, it might almost be said that he was obsessed with the desire, to have the ownership of Unit 9 so that he might continue his dispute with Mr Stefopoulos on the footing most favourable to him.

9. It was necessary for the Units Plan to satisfy the requirements of the Survey Office. By 16 October 1985 this had been done. Thereafter it was necessary to obtain indorsement by the lessee of the land and of the Minister's delegate so that documentation formalities might be completed. By letter dated 18 December 1985 the Assistant Secretary, Business Leases, of the Department of Territories advised Messrs Barker & Barker, Solicitors for the defendant, that he was then in a position to approve formally the defendant's application to sub-divide Block 2, Section 65, Weston. This seems to have been attended to in due course and I am satisfied that at all relevant times the documents which were specifically required, under the Unit Titles Ordinance 1970, to be lodged for registration were appropriately completed and ready to be lodged. As it happened, there was an error in those documents which required amendment in due course. I shall refer again to this problem.

10. Unusually, since it was not in accordance with normal conveyancing practice, Mr Christopher Eric Macphillamy, of Macphillamy & Co, then solicitors for the plaintiff, undertook that he would obtain the surrender of sub-leases from the defendant to three of its sub-lessees and would arrange for the preparation of fresh sub-leases for the premises referred to in the surrendered sub-leases so that in due course the fresh sub-leases might be lodged for registration without disadvantage to the sub-lessees concerned. The history of the surrender of one of those sub-leases, that to Mr Stefopoulos to which I have already referred, and the preparation of the sub-lease to replace it is of critical importance in this matter.

11. There is a dispute between Mr Wayne Barker, of the firm of Messrs Barker & Barker, who had the carriage of the transaction on behalf of the defendant, and Mr Macphillamy concerning the exact date when the unusual arrangement was entered into. However, it seems to me that the precise date does not matter since it is clear that by not later than 23 October 1985 Mr Macphillamy had become aware that there was a dispute between Mr Stefopoulos and the plaintiff. Foreseeing the possibility that the dispute might delay registration he undertook to obtain the necessary surrender from and to prepare the fresh sub-lease for Mr Stefopoulos. I am satisfied that had the necessary action been commenced as soon as possible after 23 October 1985 there would have been no difficulty in the eventual registration of the Units Plan by the date fixed under the contract.

12. Mr Macphillamy acted for one of the three sub-lessees the surrenders of whose sub-leases he had undertaken to obtain. Messrs Deane & Deane & Nutt acted for another while Messrs Snedden Hall & Gallop acted for Mr Stefopoulos. Not surprisingly no difficulty arose in respect of Mr Macphillamy's client. On 18 December 1985 he wrote to Messrs Deane & Deane & Nutt and Messrs Snedden Hall & Gallop. The letters were, mutatis mutandis, in identical terms. They sought surrender of each sub-lease and there was enclosed with them a form of sub-lease for approval by the respective solicitors and, if approved, for execution. The last two paragraphs of each letter read:-

"If the enclosed form of Sublease is
satisfactory from your client's point of view
we would appreciate your arranging for its
execution together with a duly executed
Surrender of your client's existing Sublease
for these premises. We note that the form of
such Surrender is in fact contained on the
last page of your client's existing Sublease.
Needless to say we would appreciate your
attending to this matter as quickly as
possible."

For the first time, a note of faint urgency was introduced into the transaction.

13. On 24 December 1985 Messrs Barker & Barker wrote to Mr Macphillamy's firm. They said, inter alia:-

"We advise that the documentation for the
units plan has been executed by our client
and returned to the Department for execution
by the Delegate of the Minister. We have
also requested our client's Mortgagee to
produce the Crown Lease and the registered
mortgage at Land Titles Office to facilitate
the registration of the Units Plan. At this
time we shall also lodge notices of expiry
for all expired Subleases together with an
application to have the Sublease to Lamber
removed from the title. In the meantime we
would be grateful if you would let us have
the Surrenders of the Subleases to Singh,
Electrotrim Pty Ltd and Stefopoulos so that
these documents may also be lodged for
registration at that time."

The letter went on to make reference to the possibility of a purchase back of the Stefopoulos premises by Mr Segon and Mr Ivankovic.

14. On 23 December 1985 Messrs Snedden Hall & Gallop wrote to Messrs Macphillamy & Co. They advised that they were surprised to note the proposal that Mr Stefopoulos surrender his present sub-lease in favour of one to be granted by the defendant. The letter went on to indicate that the writer expected that the fresh sub-lease into which Mr Stefopoulos would be prepared to enter should be granted directly by the plaintiff. The letter was received in the office of Messrs Macphillamy & Co on 2 January 1986. At that time Mr Macphillamy was absent on holiday, having left about 22 or 23 December 1985 and returned on 6 January 1986, a Monday. The only instructions he left concerning the matter were that if any documents were received during his absence they should be discussed with one of the plaintiff's directors, Mr Andrew Pickering.

15. On 7 January 1986 Mr Macphillamy wrote to Messrs Snedden Hall & Gallop enclosing an amendment to the sub-lease which showed the plaintiff as sub-lessor. He asked that it and the surrender of the earlier sub-lease should be executed. On 17 January 1986 Messrs Snedden Hall & Gallop replied, after taking detailed instructions from their client. They raised on behalf of their client a number of questions which they wanted to be dealt with. The letter was received in Mr Macphillamy's office on 20 January 1986. He replied on 22 January 1986 in terms sufficient to resolve the questions raised by Messrs Snedden Hall & Gallop. On the same day he forwarded to Messrs Barker & Barker copies of the letter from Messrs Snedden Hall & Gallop dated 17 January 1986 and his reply to it. It may be noted that on the same day, 22 January 1986, he received from Messrs Deane & Deane & Nutt the surrender of the sub-lease to their client and the replacement sub-lease. On 24 January 1986 Mr Macphillamy was able to forward to Messrs Barker & Barker the three outstanding surrenders including that by Mr Stefopoulos and two Memoranda of Sub-lease, to Electrotrim Pty Ltd and G & H Singh. He forwarded also an unexecuted Memorandum of Sub-lease to Mr Stefopoulos.

16. Mr Macphillamy's letter of 24 January 1986 to Messrs Barker & Barker went on to say:-

"Following execution of the documents
referred to in the first paragraph of this
letter it will of course be necessary to
arrange for the stamping of the Subleases.
In this respect we recommend that you arrange
with Mr David Gireaud from the Australian
Taxation Office to obtain an urgent refund of
the stamp duty on each of the surrendered
Subleases and transfer such stamp duty to the
enclosed Memoranda of Sublease. (Emphasis
added.)

We await return of the duly executed and
stamped Memorandum of Sublease to P A
Stefopoulos together with an acknowledgement
of receipt of the other documents enclosed
with this letter."

17. Mr Macphillamy's letter of 24 January 1986 to Messrs Snedden Hall & Gallop was delivered by him at about midday on that day. Early in the afternoon he received the surrender and new sub-lease signed by Mr Stefopoulos and delivered them to Messrs Barker & Barker. Mr Trevor Barker of that firm, in the absence of Mr Wayne Barker, inspected the documents and then handed back the Memorandum of Sub-lease in duplicate so that it might be executed by the plaintiff.

18. Mr Trevor Barker had received written instructions from Mr Wayne Barker concerning matters which had to be attended to during Mr Wayne Barker's absence on holidays. Mr Trevor Barker forwarded the surrenders to Mr Segon at Maroochydore in Queensland by courier delivery that afternoon. The exact time of the despatch of the documents to Mr Segon does not appear but I am satisfied that Mr Trevor Barker acted as promptly as was reasonable in the circumstances. It is to be noted, however, that the written instructions left him by Mr Wayne Barker did not indicate that there was any degree of urgency about the matter beyond what was implicit in the request that the documents should be despatched by courier to Mr Segon and from Mr Trevor Barker's knowledge of the transaction, knowledge which I find to have been ample.

19. The weekend following 24 January 1986 was a long weekend. Unfortunately, for some reason never explained in evidence, the documents did not reach Mr Segon until Tuesday, 28 January 1986. He accepted the surrenders of the sub-leases promptly and returned the documents forthwith. However, they did not reach Messrs Barker & Barker to whom they had been addressed at their post office box until the following day. I am not satisfied that these events could be held to constitute an unreasonable delay to be attributed to the defendant.

20. At this point I note that it was necessary, in my opinion, that the surrenders be accepted by the sub-lessors in person. In my opinion the method of acceptance of documents under the Real Property Ordinance 1925 by a solicitor on behalf of his client provided for by s.67 does not apply to leases or sub-leases. Sections 67(1), 86(1) and (2) and 89.

21. The position was therefore that it was not until 29 January 1986 that there was any possibility of lodging the Units Plan for registration since it is common ground that the surrenders had to be lodged with it. It was, however, possible that surrenders already in the hands of Messrs Barker & Barker, and there were a number of them, together with other documents establishing the determination of other sub-leases could have been lodged at an earlier date as Mr Macphillamy was pressing should be done so that time might be saved when the matter came to be dealt with finally for registration.

22. The surrender returned by Mr Segon reached Mr Wayne Barker between 9 a.m. and 10 a.m. on the morning of 29 January 1986. There was then nothing to prevent the lodgment of the Units Plan with the necessary surrenders of sub-leases or notices of expiration by effluxion of time. I find that all these documents, appropriately executed, were then in the hands of Messrs Barker & Barker. However, they did not have an executed sub-lease from the plaintiff to Mr Stefopoulos in their possession. Mr Barker took the view that possession of such an executed sub-lease was necessary so that he might fulfil what he conceived to be an obligation to Mr Stefopoulos to ensure that he was no worse off after the Units Plan had been registered than before.

23. On 24 January 1986 Mr Macphillamy had delivered to Messrs Barker & Barker a copy of a letter dated that day addressed to Messrs Snedden Hall & Gallop which confirmed, inter alia, that the plaintiff would, following completion of the purchase of the property, arrange for the body corporate to grant Mr Stefopoulos an exclusive licence to use the metal shed and potato peeler located upon the common property and that the plaintiff acknowledged that upon registration of the Units Plan the flue located in Mr Stefopoulos' premises would be his property. The letter ended:-

"We trust that this now resolves all concerns
previously raised on behalf of your client
and would appreciate your confirming that the
writer can collect the duly executed
Surrender of your client's existing Sublease
as well as the duly executed Sublease
forwarded under cover of our letter dated 18
December 1985."

24. Also on 24 January 1986 Mr Trevor Barker had written to Messrs Snedden Hall & Gallop to undertake that if the Units Plan of Block 2, Section 65, Weston were registered and the agreement for sale between the plaintiff and the defendant was not for any reason completed, the defendant would grant Mr Stefopoulos a fresh sub-lease of the unit he held from the defendant upon the same terms and conditions as were contained in his existing sub-lease.

25. Mr Wayne Barker took the view that he would not have lodged the surrender of the sub-lease to Mr Stefopoulos until such time as he had in his control the replacement sub-lease executed by the plaintiff. He was well aware that 31 January 1986 was the critical date for registration of the Units Plan and of the obligation on the defendant "to take all reasonable steps to obtain registration of the Units Plan by that date". He agreed, correctly as I think, in cross-examination that stamping of the new sub-lease was not necessary to obtain registration of the Units Plan but he thought it was desirable. Yet, in response to a request from Mr Macphillamy that he should, he refused to request that registration be dealt with on an urgent basis without his client's instructions. In fact I am satisfied he never sought such instructions. He apparently failed to perceive that it was not a matter on which his client's instructions were necessary having regard to the known obligation on the defendant to take all reasonable steps to obtain registration.

26. Despite the fact that he had the relevant surrenders in his possession by not later than 10 a.m. on 29 January 1986, Mr Barker did not attend at the Stamps Office until the next day. When he did he spoke to an officer of the Stamp Duties Office and explained the situation to him indicating that it was desired to get to the office of the Registrar of Titles to lodge the Units Plan as quickly as possible. In those circumstances the officer agreed to take photocopies himself of the surrenders and that then enabled Mr Barker and Mr Macphillamy, whom he had met at the Stamp Duties Office and who brought with him the new sub-lease from the plaintiff to Mr Stefopoulos, to proceed to the Titles Office to lodge the Units Plan and relevant documents for registration. The actual lodgment was carried out by Mr David John Ridge, a solicitor employed by Messrs Barker & Barker. Lodgment was completed by 2.59 p.m.

27. Mr Wayne Barker conceded that on several occasions Mr Macphillamy had asked him to lodge documents already available and to allow requisitions to issue in relation to the outstanding documents. I am satisfied that, in the circumstances, Messrs Barker & Barker could have safely lodged all surrenders of sub-leases and any notice of expiration of a sub-lease by effluxion of time other than the three which Mr Macphillamy had undertaken to obtain by not later than Friday, 24 January 1986. I am satisfied that by this time Mr Macphillamy had frequently requested Mr Wayne Barker to do something of that kind. Mr Barker, however, refused to have the even tenor of his efficient conveyancing system disturbed. In the result the time which might have been saved by lodgment and registration of the documents which it was in his power to lodge may have assumed some importance although nothing in the evidence enables me to say by how much or how little the time taken to register the Units Plan would have been shortened.

28. It is to be noted that on 29 January 1986 Mr Macphillamy wrote to Messrs Barker & Barker a letter enclosing the duly executed Memorandum of Sub-lease from the plaintiff to Mr Stefopoulos. At the same time he requested that Messrs Barker & Barker should arrange that it be stamped. He noted that the refund of stamp duty received on the surrender of the sub-lease to Mr Stefopoulos should be equal to the stamp duty payable on the fresh sub-lease. He also sought advice as to what, if any, documents had been lodged for registration at the Land Titles Office.

29. I am satisfied that Mr Macphillamy did not appreciate until very late in the course of the transaction that the clause concerning rescission for want of registration of the Units Plan by 31 January 1986 applied to both plaintiff and defendant.

30. I am satisfied that what was done by Mr Gireaud, the officer of the Stamp Duties Office to whom I have earlier referred, on 30 January 1986 in respect of at least the surrender of the sub-lease to Mr Stefopoulos could have been done with similar expedition on the morning of 29 January 1986 had Mr Barker thought to do it. It seems to me that this would have been a reasonable course to adopt but that Mr Barker had far too tender a regard for the position of Mr Stefopoulos, seeing the letter written by Mr Trevor Barker as constituting some form of iron clad requirement that he should have in his hand before lodging the Units Plan a duly executed sub-lease in favour of Mr Stefopoulos from the plaintiff. In this, I think, he was mistaken. It seems to me that no part of his duty required that he should have had that document in his hand by the time the Units Plan was lodged. His concern should have been with lodgment of the surrenders and any notice of expiry of sub-leases by effluxion of time as well, of course, as with the lodgment of the Units Plan itself.

31. Although Mr Wayne Barker fully appreciated the need for registration of the Units Plan by 31 January 1986 I am satisfied that he relied on past experience to assume that there was no chance of urgent registration of the Units Plan once a period of less than five working days remained after lodgment until the close of business on 31 January 1986.

32. In this I am satisfied that he was wrong. The Titles Office had the resources available to deal much more urgently with a Units Plan of the type in question than that. I am satisfied that a request to the appropriate officer in the Land Titles Office would have seen a concerted effort made to ensure that registration was effected by the close of business on 31 January 1986. I am not satisfied that one working day would have been enough. I am reasonably satisfied that lodgment on the morning of Thursday, 30 January 1986 would have resulted in registration by the appropriate deadline. In saying this I bear in mind the fact that it was noted on 7 February 1986 that an error in the documentation had to be corrected and the parties had to attend at the Land Titles Office to ensure that the correction was appropriately verified. I can see no reason why this could not have been done the week before had the error been noticed before registration.

33. I am more than satisfied that registration could have been effected had the documents been lodged with an appropriate request for urgent registration on the morning of 29 January 1986 as I think they could have been.

34. The evidence does not enable me to say with any confidence whether the documents forwarded to Mr Segon on 24 January 1986 could have been returned earlier than 29 January 1986. It is possible that they could have been but when regard is had to the fact that Mr Segon was living at Maroochydore, a town some distance to the north of Brisbane, and the fact that a holiday weekend intervened, I cannot be satisfied on the balance of probabilities that the documentation would have been returned any earlier in fact. I proceed, therefore, on the basis that the earliest time when all necessary documents in connection with the proposed registration of the Units Plan were available to Mr Barker was by not earlier than 10 a.m. on 29 January 1986.

35. The question, therefore, is whether the defendant had done all that it was reasonably and properly required to do to enable registration of the Units Plan to be effected by 31 January 1986.

36. When the Units Plan was not registered by the close of business on 31 January 1986 the agreement for sale became, in my opinion, voidable at the option of either party on the giving of the appropriate notice. There was, however, an implied condition that either party seeking to rescind the contract because the Units Plan had not been registered should have done all that was reasonable and proper on its part to the end that such registration should have been effected. This follows, I think, from the authorities, including, in particular, Butts v. O'Dwyer [1952] HCA 74; (1952) 87 CLR 267 at p 283. It flows from the rule,

"held in cases too numerous to mention both
before and after the classic statement of
Bowen LJ in the case of The Moorcock (1889)
14 P.D. 64, at p.68 that the law raises an
implication from the presumed intention of
the parties where it is necessary to do so in
order to give the transaction such efficacy
as both parties must have intended that it
should have."

Butts v. O'Dwyer (supra) at p 280. Many of the cases on the topic are helpfully collected, if I may say so with respect, in Earle Cameron (Industrial) Pty. Ltd. v. Comprador Properties Pty. Ltd. a judgment of Hodgson J delivered on 22 November 1985 and, as yet, so far as I know, unreported.

37. I note too that in his affidavit sworn 1 April 1986 Mr Pickering deposed to an attempt made by him on 28 January 1986 to have Mr Segon instruct Mr Barker to request urgent registration. Mr Segon replied "He knows it's urgent". I accept that evidence. It indicates in my opinion that Mr Segon too was not as at 28 January 1986 sufficiently seised of the urgency of the matter to give what seem to me to have been the reasonable instructions sought. I think compliance with Mr Segon's request would have been reasonable and obedience to such instructions would have imposed no undue burden on Mr Barker. Nor would Mr Barker have undertaken any such burden had he requested urgent registration of his own volition.

38. In all the circumstances, I am satisfied that the defendant's failure to request registration as a matter of urgency was a failure in the duty imposed impliedly on it by the agreement for sale and that therefore it could not properly take advantage of that failure to give notice of rescission.

39. The plaintiff pleaded also that before its purported rescission after 31 January 1986 the defendant elected to confirm the agreement.

40. Mr Segon of the defendant company swore in his affidavit of 8 April 1986 that not later than 7 February 1986 during the course of telephone negotiations with Mr Pickering he requested that Mr Pickering advise whether he would be prepared to consent to the extension of the period of time during which the defendant could pull out for a further period of 14 days. The request was refused. On 11 February 1986 during a further conversation with Mr Pickering Mr Segon again requested an extension of time for pulling out. That request was made during the course of a conversation deposed to by Mr Pickering in his affidavit referred to above. I accept Mr Pickering's version of that conversation.

41. In my opinion Mr Segon's request for an extension of time in respect of the date when notice of rescission might be given constituted an unequivocal election to confirm the agreement for sale, an election made by Mr Segon as director and hence with appropriate authority and in full knowledge that the defendant could have, after 31 January 1986, assuming it had performed its implied duty under the agreement, rescinded it by appropriate notice. Sargent v. A.S.L Developments Ltd. [1974] HCA 40; (1974) 131 CLR 634.

42. Counsel for the plaintiff sought also to put an alternative argument that since registration of the Units Plan was effected on 7 February 1986 before notice of the rescission was given it was too late because the relevant condition had been fulfilled. He relied upon, inter alia, Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418 and Cutilio v. De Blasio (1974) 9 SASR 108, particularly at p 122. The facts on which this submission was based are clearly established but I find it unnecessary to decide the question raised in view of the conclusions I have earlier come to.

43. There will be judgment for the plaintiff.