Amaya v Estate Property Holdings Pty Ltd;Firmstone v Estate Property Holdings Pty Ltd;Abu Sarkar v Estate Property Holdings Pty Ltd [2010] NSWSC 32 (9 February 2010)

Last Updated: 10 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Amaya v Estate Property Holdings Pty Ltd;Firmstone v Estate Property Holdings Pty Ltd;Abu Sarkar v Estate Property Holdings Pty Ltd [2010] NSWSC 32


JURISDICTION:
Equity Division

FILE NUMBER(S):
5945/07
5949/07
2781/08

HEARING DATE(S):
14 and 15 December 2009

JUDGMENT DATE:
9 February 2010

PARTIES:
Enrique Amaya & 1 Or v Estate Property Holdings Pty Ltd;
Mervyn Firmstone & 1 Or v Estate Property Holdings Pty Ltd;
Mohammed Abu Sarkar & 1 Or v Estate Property Holdings Pty Ltd


JUDGMENT OF:
White J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
Plaintiffs: D L Warren
1st Defendant: M Elliott
2nd Defendant: n/a

SOLICITORS:
Plaintiffs: Herat Solicitors
1st Defendant: Horton Rhodes Lawyers
2nd Defendant: Turks Legal


CATCHWORDS:
CONTRACT – vendor and purchaser dispute – where time for completion of the essence – failure to complete by purchaser – validity of vendor’s service of notice of termination of contract – whether vendor performed obligation to serve occupation certificate within meaning of Environmental Planning and Assessment Act 1979 – whether documents required to accompany occupation certificate form part of certificate – whether vendor breached obligation to provide particulars for form of transfer by failure to notify purchaser of appointment of administrator – intimation by purchaser to vendor that useless to complete – vendor’s reliance on purchaser’s intimation dispensed with vendor’s obligation to be ready, willing and able to complete – vendor’s remedies – termination – forfeiture of deposit – damages

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 (NSW)
Corporations Act 2001 (Cth)
Conveyancing Act 1919 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
McQueen v Leduva Pty Ltd [2008] NSWSC 284
Fekala Pty Ltd v Castle Constructions Pty Ltd [2002] NSWCA 297; (2003) NSW ConvR 56-042
Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235
Wilson v Kingsgate Mining Industries Pty Ltd [1973] 2 NSWLR 713
Ireland v Leigh [1981] Qd R 145
Blacktown City Council v Fitzgerald (1990) 6 BPR 13,409
Union Eagle Ltd v Golden Achievement Ltd (Hong Kong) [1997] UKPC 5; [1997] AC 514

TEXTS CITED:
Butt, The Standard Contract for Sale of Land in New South Wales, 2nd ed LBC Information Services (1998)

DECISION:
Refer to para 71of judgment.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION


WHITE J

Tuesday, 9 February 2010

5945/07 Enrique Amaya & 1 Or v Estate Property Holdings Pty Ltd & Anor

5949/07 Mervyn Firmstone & 1 Or v Estate Property Holdings Pty Ltd & Anor

2781/08 Mohammed Abu Sarkar & 1 Or v Estate Property Holdings Pty Ltd & Anor

JUDGMENT

1 HIS HONOUR: These three vendor and purchaser disputes were heard together. They each relate to off-the-plan purchases of residential units in a building to be constructed at 138/140 Church Street, Parramatta, known as The Escen on Church (“the Escen”). In each case the vendor was the first defendant, Estate Property Holdings Pty Ltd.

2 In each case the vendor gave notice terminating the contract for the purchaser’s failure to complete after time had purportedly been made essential. In each case the purchaser says that the vendor’s notice to complete making time for completion essential was invalid because the time for completion had not arrived. The reason for this, it is said, is that the purchasers were only required to complete 14 days after service of an occupation certificate within the meaning of the Environmental Planning and Assessment Act 1979 (NSW). The purchasers say that no such certificate was served because the document served did not include a fire safety certificate and fire safety schedule required by reg 155(2) of the Environmental Planning and Assessment Regulation 2000.

3 The purchasers also say that the vendor was not entitled to terminate the contracts because it was not ready, willing and able to complete at or by the time purportedly made essential by the notices to complete. The vendor did not have executed transfers. Nor had it arranged for the mortgagee to attend with the certificates of title and executed discharges of mortgage.

4 I have concluded that the occupation certificate within the meaning of the Environmental Planning and Assessment Act was served, notwithstanding that the document served did not include the documents required to accompany the certificate for the purposes of that Act. Time for completion was made essential. I have also concluded that the purchasers by their conduct, although not by express words, intimated to the vendor that it was useless for the vendor to be ready to settle. Such intimation dispenses with the requirement that the vendor be ready, willing and able to complete.

5 Therefore I have concluded that the vendor terminated each contract for the purchaser’s breach, was entitled to forfeit the deposit and is entitled to damages.

Background

6 On 1 April 2004, the plaintiff in proceedings 5949 of 2007, Mr Firmstone, exchanged contracts with the vendor to buy unit 704 in the Escen known as lot 24 in the unregistered strata plan. The purchase price was $529,000.

7 On 1 September 2004, the plaintiffs in proceedings 2781 of 2008, Messrs Sarkar and Islam, exchanged contracts to buy unit 604 in the Escen, being lot 20 in the unregistered strata plan. The purchase price was $529,900.

8 On 1 October 2004, the plaintiffs in proceedings 5945 of 2007, Mr and Mrs Amaya, exchanged contracts to buy unit 1002 in the Escen, being lot 34 in the unregistered strata plan. The purchase price was $449,000.

9 In each case the purchaser provided a 10 percent deposit in the form of a bond provided by the second defendant, Lumley General Insurance Limited (“Lumley General Insurance”).

10 Each contract provided that completion was conditional on the registration of the strata plan. Under each contract the purchaser was required to serve the form of transfer within seven days after the date on which the vendor served notice on the purchaser that the strata plan had been registered.

11 Special Condition 7 of each contract provided:

“7 Completion

(a) Completion of this contract shall take place on the later of the following dates:

(i) the date which is twenty one (21) days of the date on which the vendor’s solicitor shall notify the purchaser that the Strata Plan has been registered; and

(ii) the date which is fourteen (14) days after the date the vendor serves on the purchaser the original or copy of an occupation certificate as provided in (b) below.

(b) The vendor must serve at least fourteen (14) days before completion the original or a copy of an occupation certificate within the meaning of the Environmental Planning and Assessment Act 1979 (being an interim occupation certificate or a final occupation certificate) in relation to the Building or part of the Building, of which the Property and access to the Property form part.

(c) For the purposes of this clause, the part of a building comprising access to a lot is any part of the building reasonably necessary for access to the lot.

(d) The purchaser does not have to complete earlier than 14 days after service of the original or copy certificate.”

12 The Amaya contracts, but not the other two contracts, provided that the purchaser could rescind if, inter alia, an administrator were appointed to the vendor.

13 Mr and Mrs Amaya were represented by a solicitor, Mr Herat of Herat Solicitors. Mr Firmstone was also represented by a solicitor. By the time for completion his solicitor was Mr Wehbe of Robert Wehbe & Partners. Mr Sarkar and Mr Islam acted for themselves.

14 On 12 April 2007, Church & Grace, the solicitors for the vendor, advised each purchaser that the strata plan had been registered and that completion was to take place in accordance with Special Condition 7.

15 On 27 April 2007, Mr Steve Watson, an accredited certifier authorised to issue an occupation certificate under Pt 4A of the Environmental Planning and Assessment Act, issued an interim occupation certificate for the building. Attached to the interim occupation certificate was an interim fire safety certificate and 42 other certificates. On the same day he sent the interim occupation certificate and its attachments to the Parramatta City Council as required by reg 151 of the Environmental Planning and Assessment Regulation. The purchasers do not dispute that the interim occupation certificate was validly issued.

16 On 27 April 2007, Church & Grace wrote to the purchasers or their solicitors enclosing what they called “interim occupation certificate no. 02/275/01 issued by Steve Watson & Partners dated 27 April 2007”. Church & Grace asked each purchaser to make an appointment to complete within 14 days. They said that once an appointment was made they would send draft settlement figures and cheque directions.

17 The interim occupation certificate enclosed with Church & Grace’s letter of 27 April 2007 did not include the attachments. None of the purchasers queried this. None asked to be provided with a copy of the attachments. It was of no moment to the purchasers whether the attachments were included or not.

18 At least Mr and Mrs Amaya and Mr Firmstone were unable to raise the finance to complete the purchase. On 12 January 2007 Mr and Mrs Amaya instructed Mr Herat that due to a drastic change in their financial situation and medical problems they could not “continue to settle the property”. On 30 January 2007 Mr Herat, on their behalf, advised a Mr Robins, the national sales manager for the vendor, that “due to financial problems and health issues, the purchasers feel that they can no longer proceed with the acquisition of the property.” Mr Herat asked to be able to discuss his clients’ options with Mr Robins on an off-the-record basis. There was no evidence of whether such discussions were held, or, if so, their content. It is clear that Mr and Mrs Amaya were unable to raise the finance to complete the purchase.

19 Mr Firmstone attempted to arrange finance through a mortgage broker but was unsuccessful.

20 There was no evidence as to why Mr Sarkar and Mr Islam did not complete the contract. They had no complaint about the sufficiency of the interim occupation certificate enclosed with Church & Grace’s letter of 27 April 2007.

21 Despite Church & Grace’s request of 27 April 2007, none of the purchasers contacted Church & Grace to make an appointment for settlement. They did not propose any settlement figures.

22 On 2 May 2007 Mr Herat wrote to Mr and Mrs Amaya advising them that settlement was required by 11 May 2007. He asked them to finalise their finance and to provide details of their bank so that he could liaise with the bank for settlement. No such finance was forthcoming.

23 Each purchaser was obliged to serve a form of transfer on the vendor by 19 April 2007. On 17 April 2007 Church & Grace asked Mr Herat to forward the transfers to their office as soon as possible. He did not do so.

24 On 16 April 2007 Mr Wehbe, acting for Mr Firmstone, wrote to Church & Grace. He enclosed an unstamped transfer for execution by the vendor, expressed to be subject to receipt of satisfactory replies to requisitions. The enclosed form of transfer correctly named the transferor. It provided for execution by the transferor by its attorney in the same way as the contract for sale had been executed. Replies to requisitions were provided. There is no issue as to their being satisfactory.

25 If the certificate served by Church & Grace under cover of their letter of 27 April 2007 was an occupation certificate within the meaning of the Environmental Planning and Assessment Act, each contract was due to be completed on 11 May 2007. No arrangements were made by the purchasers to complete.

26 On 18 May 2007 Church & Grace served notices to complete. Each notice to complete stated that the vendor was ready, willing and able to complete the contract and required that the contract be completed by no later than 2.30pm (or in the case of the Amaya contract, 3pm) on 13 June 2007 at the offices of Church & Grace. Each notice made the time for completion of the essence.

27 On 28 May 2007 an administrator was appointed to the vendor. Neither Mr Herat for Mr and Mrs Amaya, nor Mr Islam and Mr Sarkar, had submitted a form of transfer as required by Special Condition 2(d) (which replaced clause 4.1 of the general conditions of contract). The vendor did not notify the purchasers that an administrator had been appointed to it. If the vendor had executed a form of transfer, the name of the vendor as shown on the transfer would have to have included the words “(administrator appointed)” (Corporations Act 2001 (Cth), s 450E(1) and s 88A(1)(b)).

28 Prior to 13 June 2007 Mr Herat ascertained from a search that an administrator had been appointed to the vendor. Mr and Mrs Amaya did not exercise their right to rescind under clause 15(b).

29 On 5 June 2007 Church & Grace wrote to Mr Sarkar and Mr Islam enclosing settlement figures for completion on 13 June 2007. The settlement figures included usual conveyancing adjustments and contained a direction for the payment of cheques. In their letter of 5 June 2007 Church & Grace also stated:

“We have taken the liberty of preparing a Transfer (copy enclosed) which will be available at settlement. If you have an incoming financier, they ordinarily require that a stamp transfer be available at settlement. Stamping is your responsibility.

We await hearing from you.”

30 The enclosed form of transfer named the vendor without including the words “(administrator appointed)”. However, Mr Sarkar and Mr Islam were not entitled to rescind by reason of the appointment of the administrator. They made no contact with Church & Grace.

31 Nor did Mr Herat acting for Mr and Mrs Amaya contact Church & Grace to make an appointment to complete. Mr Herat could not recall whether or not he had had such a discussion. It is clear he did not. His clients were not in a position to complete. His file contained no note of any conversation with anyone from Church & Grace about arranging for settlement. Had there been such a conversation, a file note would have been made. It also appears that there were no file notes in the file of Church & Grace of such an appointment.

32 The solicitor handling the matter for Church & Grace did not give evidence. He refused to provide an affidavit or statement to the vendor’s current solicitors.

33 On 13 June 2007 Mr Amaya confirmed to Mr Herat that he could not complete the contract. Mr Herat did not attend at the offices of Church & Grace. Nor did Mr Sarkar or Mr Islam.

34 There was included on Church & Grace’s file for both the Amaya purchase and the Sarkar and Islam purchase a sheet headed “Settlement Instructions” setting out the documents to be received from the discharging mortgagee, the Commonwealth Bank of Australia (“Commonwealth Bank”), the cheques to be received from the purchaser and other documents to be received from the purchaser. The sheet also set out the documents Church & Grace were to give to the purchaser, and the cheque to be provided to the discharging mortgagee. There was included on Church & Grace’s file a draft letter authorising the purchaser to pay the balance of the settlement moneys. The “Settlement Instructions” appears to be an internal document for the guidance of the solicitor or clerk acting on the settlement. It was not sent to Mr Herat or to Mr Sarkar and Mr Islam. The draft authority and direction for payment were likewise not sent.

35 On 13 June 2007 at 4.11pm Church & Grace served by facsimile on Mr Herat a notice of termination of the Amaya contract. At 5.45pm on that day Mr and Mrs Amaya wrote to the vendor stating, in effect, that they were unable to complete the purchase due to family death and sickness which impoverished them. That notice, which might have constituted a repudiation of the contract if the contract had remained on foot, was not sent until after the service by Church & Grace of the notice of termination.

36 On 15 June 2007 Church & Grace also served notice of termination of the contract with Mr Sarkar and Mr Islam.

37 In the case of the contract with Mr Firmstone, matters took a different course. On 5 June 2007 Church & Grace wrote to Mr Wehbe, Mr Firmstone’s solicitor, enclosing settlement figures after adjustments for settlement on 13 June 2007 and a cheque direction. They asked Mr Wehbe to nominate a suitable time for settlement before expiry of the time fixed by the notice to complete.

38 On 8 June 2007 Mr Wehbe wrote to Church & Grace. He stated that he had been instructed to request an extension of ten days of the notice to complete to ensure that his client had funds available to complete the purchase. On 12 June 2007 Church & Grace advised that the vendor proposed that the contract be varied to provide for completion on 27 June 2007 no later than 2.30pm, time to be of the essence, and with interest to continue to accrue. On the next day Mr Wehbe conveyed his client’s agreement with that proposal. He wrote to Church & Grace:

“We will contact you to arrange a settlement date as soon as we are in a position to do that.”

39 No such arrangement was made. Notwithstanding the extension, Mr Firmstone was unable to secure finance. On 27 June 2007 at 10.55am Mr Wehbe sent a facsimile to Church & Grace asking them to seek their client’s instructions for a 21-day extension for settlement. Church & Grace replied that day advising that the vendor would not agree to the requested, or any, extension. On 28 June 2007 Church & Grace served notice of termination of the contract with Mr Firmstone.

40 As with the other two matters, Church & Grace’s file for Mr Firmstone’s purchase included a file note headed “Settlement Instructions” for a settlement on 13 June 2007 setting out the documents to be received from the discharging mortgagee, the cheques and other documents to be received from the purchaser, the documents to be provided to the purchaser and the cheque to be provided to the discharging mortgagee, the Commonwealth Bank. The document was an internal instruction as to what documents were required for settlement. Also on the file was an unsigned authority and direction addressed to the purchaser’s solicitor for the payment of the balance of the settlement moneys. The document was not sent.

41 It was common ground that Church & Grace did not hold a transfer executed by the vendor, nor all required discharges of mortgage. It was common ground that the Commonwealth Bank did not attend at the offices of Church & Grace on 13 June 2007 or 27 June 2007 with executed discharges of mortgage and the certificates of title to be handed over had settlement proceeded. There were other mortgages on the title in favour of Australian Capital Reserve Limited. Church & Grace held executed discharges of those mortgages signed by a Mr Creech, a partner of Church & Grace, under power of attorney. It was also common ground that the vendor and the vendor’s solicitors could have procured the handing over of the discharge of mortgage by the Commonwealth Bank and the certificate of title and could have arranged for the execution of the transfer had they sought to do so. There was no agreement and no evidence as to the period of notice the Commonwealth Bank and the administrator would have required for that to be done.

42 On 21 June 2007 Mr Herat wrote to Church & Grace referring to its notice of termination dated 13 June 2007. He said that the purchasers (Mr and Mrs Amaya) regarded that notice of termination as a repudiation by the vendor of its obligations under the contract. He stated that the purchasers accepted the repudiation and themselves terminated the contract. He purportedly required the return of any moneys called upon under the deposit bond. Mr Herat later obtained instructions to act for Mr Sarkar and Mr Islam and for Mr Firmstone. On 13 August and 17 September 2007 he wrote to Church & Grace on behalf of those purchasers stating that the vendor’s notice of termination of the contract was a repudiation and purportedly accepting the repudiation.

43 The vendor called upon the deposit bonds. Lumley General Insurance duly paid the bonds. It sued each of the purchasers, seeking to be indemnified in respect of the moneys paid out. It is agreed that if the purchasers are not successful in their claims against the vendor, judgment should be entered in favour of Lumley General Insurance against each of the purchasers for the amounts of the bonds which it paid out. It is agreed that if the purchasers succeed in their claims against the vendor, they will authorise and direct the vendor to pay to Lumley General Insurance the amounts paid by Lumley General Insurance under each deposit bond.

44 The purchasers dispute the validity of the vendor’s termination of each contract on the following grounds. First, the plaintiffs contend that the vendor did not serve an occupation certificate within the meaning of the Environmental Planning and Assessment Act as required by Special Condition 7 and by the term implied by cl 2 of Schedule 2 of the Conveyancing (Sale of Land) Regulation 2005. Counsel for the purchasers contended that this meant that the time for completion had not arrived when the notices to complete were served. Counsel submitted that in the case of the Firmstone contract there was no variation of the contract dispensing with the requirement for service of the required occupation certificate. Counsel submitted that the reason the document served was not an occupation certificate within the meaning of the Environmental Planning and Assessment Act was that it did not include a fire safety certificate and fire safety schedule for the building as required by reg 155(2).

45 Secondly, counsel for the purchasers submitted that the vendor was required to provide the purchasers with the necessary particulars for the preparation of the form of transfer. After 28 May 2007 this required notice of the fact that an administrator had been appointed to the vendor. The vendor’s name on the transfer had to include the words “administrator appointed”. It is not clear to me what consequence would flow from the alleged breach, given that if there were such an obligation it did not arise until after service of the notice to complete, and therefore could not invalidate the notice to complete. The only contract which entitled a purchaser to rescind by reason of the appointment of an administrator to the vendor was the contract with Mr and Mrs Amaya. Their solicitor was aware of the appointment of the administrator prior to 13 June 2007.

46 Thirdly, counsel for the purchasers submitted that the vendor’s termination of the contract was ineffective because at the time of termination the vendor was not ready, willing and able to complete. The reason for this, it was said, was that the vendor’s solicitor had not obtained an executed transfer and had not arranged with the mortgagee for it to attend on settlement with an executed discharge of mortgage and the certificate of title. Counsel for the vendor submitted that the purchasers had impliedly intimated to the vendor that it was useless for it to do so and that the vendor’s solicitor acted on that intimation.

Occupation Certificate

47 Special Condition 7 is quoted at para [11] above. It is relevantly in the same terms as cl 2 of Schedule 2 to the Conveyancing (Sale of Land) Regulation, which term is implied by virtue of s 52A(2)(b) of the Conveyancing Act 1919 (NSW) and reg 6 of the Conveyancing (Sale of Land) Regulation. Clause 2 of Schedule 2 provides:

“2 Strata units bought ‘off the plan’

(1) The vendor must serve at least 14 days before completion the original or a copy of an occupation certificate within the meaning of the Environmental Planning and Assessment Act 1979 (being an interim occupation certificate or a final occupation certificate) in relation to the building, or part of the building, of which the lot and access to the lot form part.

(2) For the purposes of this clause, the part of a building comprising access to a lot is any part of the building reasonably necessary for access to the lot.

(3) The purchaser does not have to complete earlier than 14 days after service of the original or copy certificate.”

48 The relevant provisions of the Environmental Planning and Assessment Act as in force at the relevant time were as follows. Section 109C provided:

“109C Part 4A certificates

(1) The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part:

...

(c) an occupation certificate, being a certificate that authorises:

(i) the occupation and use of a new building, or

(ii) a change of building use for an existing building,

...

(2) An occupation certificate:

(a) may be an interim certificate or a final certificate, and

(b) may be issued for the whole or any part of a building.

...”

49 Section 109M provided that a person must not commence occupation or use of the whole or any part of a new building (within the meaning of s 109H) unless an occupation certificate has been issued in relation to the building or part. Section 109H provided that there were two kinds of occupation certificate, namely an interim occupation certificate or a final occupation certificate. Section 109H(1B) provided that an occupation certificate must not be issued unless any preconditions to the issue of the certificate specified in the development consent or complying development certificate had been met. Other conditions on the issue of an interim occupation certificate were specified in s 109H(1C) and (1D). Regulation 155 of the Environmental Planning and Assessment Regulation provides:

“155 Form of occupation certificate

(1) An occupation certificate must contain the following:

(a) the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,

(b) if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,

(b1) if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,

(b2) if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,

(c) the date of the certificate,

(d) indicate the type of certificate being issued (that is, interim or final),

(e) a statement to the effect that:

(i) the health and safety of the occupants of the building have been taken into consideration where an interim occupation certificate is being issued, and

(ii) a current development consent or complying development certificate is in force for the building, and

(iii) if any building work has been carried out, a current construction certificate (or complying development certificate) has been issued with respect to the plans and specifications for the building, and

(iv) the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(v) a fire safety certificate has been issued for the building, and

(vi) a report from the Fire Commissioner has been considered (if required).

(2) Except as provided by subclause (3) or (4), the certificate must be accompanied by a fire safety certificate and fire safety schedule for the building.

(3) If the need for the occupation certificate arises solely from fire link conversion, the certificate need only be accompanied by a fire safety certificate of the kind referred to in section 153 (1A) and the relevant fire link conversion schedule or fire safety schedule issued under clause 168A.”

50 Regulation 149 permits persons to apply for an occupation certificate and specifies the information required in such an application. By implication an occupation certificate is issued to the applicant. Regulation 151 provides:

“151 Procedure for determining application for occupation certificate

...

(2) The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 2 days after the date of the determination:

(a) a copy of the determination,

(b) copies of any documents that were lodged with the application for the certificate,

(c) if an occupation certificate was issued, a copy of the certificate,

(d) a copy of the record required to be made of each of the following:

(i) all critical stage inspections and any other inspections carried out because they were required by the principal certifying authority under section 109E (3) (d) of the Act,

(ii) any inspection carried out under clause 162A (4A) (a),

(iii) any missed inspection to which clause 162C applies,

(e) a copy of any compliance certificate and of any other documentary evidence, whether or not of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia, relied on in issuing the occupation certificate.”

51 As earlier noted in these reasons there is no challenge to the validity of the interim occupation certificate issued in this case.

52 Regulation 155(2) requires an occupation certificate to be accompanied by a fire safety certificate and fire safety schedule for the building. It does not provide that the fire safety certificate and fire safety schedule are part of the occupation certificate.

53 The interim occupation certificate served under cover of Church & Grace’s letter of 27 April 2007 specified that there were attachments, namely the interim fire safety certificate and other certificates outlined in a table. The table containing the list of those certificates was included in the form of the certificate served on the purchasers. The fact that the certificate referred to and described the attachments did not make the attachments part of the certificate within the meaning of the Environmental Planning and Assessment Act. It was the certificate in the form in which it was served on the purchasers which authorised the occupation and use of the building.

54 Counsel for the purchasers argued that reg 155(2) required that the fire safety certificate and fire safety schedule accompany the certificate served on the purchasers. Counsel submitted that a purposive construction should be given to reg 155 so that those persons who need to rely upon an occupation certificate, and who are to move into and occupy a new building, should receive the required accompanying documents, if the certificate served on them is to be valid. Even if this construction of reg 155(2) were correct, it would not follow that the required accompanying documents formed part of the occupation certificate to be served in accordance with Special Condition 7, or the prescribed term under cl 2 of Schedule 2 to the Conveyancing (Sale of Land) Regulation. If the submission were correct, the vendor might have been in breach of reg 155(2), but that is a different question.

55 But in my view the submission is misconceived. The regulation prescribing what documents must accompany an occupation certificate is made for the purposes of the Environmental Planning and Assessment Act and Regulation. Nothing in that Act or the Regulation deals with what documents should be served in a conveyancing transaction.

56 I would accept that the occupation certificate to be served pursuant to the prescribed term of the contract must be a valid certificate, that is, it must authorise the use and occupation of the building. It would not be every failure to comply with a requirement of reg 155 which would invalidate a certificate. But even if it be assumed that a certificate issued by the accredited certifier without the accompanying documents required by reg 155(2) was for that reason invalid, it would not follow that the certificate required to be served pursuant to the prescribed term of the contract for sale had to be accompanied by those documents.

57 Neither Special Condition 7 nor the term prescribed by cl 2 of Schedule 2 to the Conveyancing (Sale of Land) Regulation requires the service of documents which might be necessary for a purchaser to conduct an audit of the validity of the certificate. Nor would the validity of the certificate be established by a vendor’s serving on the purchaser the certificate with the required accompanying documents. If the accompanying documents were required for the certificate to be valid the question would be whether such documents accompanied the certificate when it was issued, and perhaps when it was provided to the Council. That fact would not be established by the attachment of the documents to the certificate served on the purchaser. In other words, the construction of the prescribed term contended for by the purchasers would not advance any purpose of the conveyancing transaction.

58 The argument advanced for the purchasers was rejected by Hammerschlag J in McQueen v Leduva Pty Ltd [2008] NSWSC 284 at [109]- [112]. Although it is unnecessary for me to decide the point, I am inclined to agree with his Honour’s conclusion at [112] that the absence of an attached fire safety certificate would not make an occupation certificate a nullity in any event. Be that as it may, there was no requirement for the vendor to attach the fire safety certificate or fire safety schedule to the occupation certificate served on the purchasers.

59 Further, in the case of Mr Firmstone’s contract, the parties agreed on a new date for completion, with time to be of the essence. They did so after service of the certificate. I do not accept the submission for Mr Firmstone that notwithstanding the agreed new date for completion, the vendor was required to serve additional documents. There was no such stipulation. Nor would such a stipulation be implied. To the contrary, the parties acted on the basis that everything had been done for completion to be due. Therefore, if my construction of Special Condition 7 and the prescribed term is wrong, in Mr Firmstone’s case, there was in any event a contractual variation requiring completion on 27 July 2007 with time to be of the essence.

60 It is unnecessary to deal with the vendor’s further argument that if the purchasers’ construction of Special Condition 7 and the prescribed term were correct, the vendor in any event substantially performed its obligation to serve the occupation certificate, and the purchasers accepted that performance as sufficient by not asking for any further documents.

Form of Transfer

61 It is unnecessary to explore whether any consequence would follow if the vendor were in breach of an obligation to inform the purchasers that an administrator had been appointed so that a form of transfer with the correct name for the vendor could be prepared (see para [45] above). The administrator was not appointed until 28 May 2007, that is, after service of the notices to complete. The solicitor for Mr Firmstone prepared the form of transfer and submitted it to the vendor. There was nothing further the vendor was required to do to enable him to prepare the transfer. The other two purchasers breached their obligation to submit a form of transfer within seven days of service of notice of registration of the strata plan. The notices to complete did not require the purchasers to submit a form of transfer. By serving the notices to complete without making that requirement the vendor waived performance of the purchasers’ obligation to prepare the transfers (Fekala Pty Ltd v Castle Constructions Pty Ltd [2002] NSWCA 297; (2003) NSW ConvR 56-042 at [34]).

Vendor’s Readiness, Willingness and Ability to Complete

62 The vendor was not entitled to terminate the contracts unless it was ready, willing and able to complete. To be able to complete the vendor needed to be in a position to tender a duly executed transfer, to procure the mortgagee to produce the certificate of title, and to provide duly executed discharges of all mortgages. It was not in a position to do so. Hence counsel for the purchasers argued that the vendor was not ready, willing and able to complete. Because the purchasers’ obligation to complete was concurrent and dependent upon the vendor’s doing so, it was argued that the purchasers did not breach their contracts and the vendor’s purported termination of the contract was a repudiation.

63 But the question is whether the purchasers impliedly intimated that it would be useless for the vendor to tender performance. In Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235, Dixon CJ said (at 246-247):

“... it was always the law that, if a contracting party prevented the fulfilment by the opposite party to the contract of a condition precedent therein expressed or implied, it was equal to performance thereof. But a plaintiff may be dispensed from performing a condition by the defendant expressly or impliedly intimating that it is useless for him to perform it and requesting him not to do so. If the plaintiff acts upon the intimation it is just as effectual as actual prevention.” (Citation of authority omitted); see also Mahoney v Lindsay (1981) 55 ALJR 118 at 119; Foran v Wight [1989] HCA 51; (1989) 168 CLR 385 at 396, 403, 417, 419-420, 427, 433-434, 451, 453-454, 456.)

64 The intimation need not be express. It may be conveyed by conduct. The intimation is most clear in the case of Mr Firmstone’s contract. His solicitor told the vendor’s solicitor that they would be contacted to arrange a settlement date as soon as the purchaser’s solicitor was in a position to do that. But no such contact to arrange a settlement date was made. Instead he asked for more time. The clear inference was that Mr Firmstone was not in a position to settle.

65 There was also such an intimation by the silence of Mr Sarkar and Mr Islam and of the solicitor for Mr and Mrs Amaya. Usual conveyancing procedures and the implied duty of a co-operation to bring about completion of the contract require a purchaser to contact the vendor to make arrangements for settlement. A purchaser should seek out the vendor and tender the purchase money (Wilson v Kingsgate Mining Industries Pty Ltd [1973] 2 NSWLR 713 at 726; Butt, The Standard Contract for Sale of Land in New South Wales, 2^nd ed LBC Information Services (1998) at [16.76]; Ireland v Leigh [1981] Qd R 145 at 148).

66 Mr Sarkar and Mr Islam failed to respond not only to the notice to complete, but to Church & Grace’s letter of 5 June 2007 which enclosed a transfer and said “We await hearing from you”. Mr and Mrs Amaya’s solicitor, Mr Herat, had earlier informed the vendor’s national sales manager that his clients felt that they could not proceed with the acquisition of the property due to financial problems and health issues. The silence of both purchasers in response to the notices to complete impliedly intimated that the purchasers would not be attending at any settlement. The notice to complete identified the latest time by which completion was required. The purchasers had to contact the vendor’s solicitors to make the necessary arrangements. Normal conveyancing practice would require the purchasers to arrange a time for settlement, agree upon adjustments, and ascertain how cheques were to be made out.

67 The present case is similar to Blacktown City Council v Fitzgerald (1990) 6 BPR 13,409 at 13,414-13,415 where a purchaser who failed to complete after time had been made essential disputed the validity of the vendor’s termination of the contract on the ground that at the time fixed for completion, the vendor was not in a position to complete. The vendor’s solicitor did not attend a nominated office for completion because the solicitor correctly believed that the purchaser was not going to attend and settle on that day. The reason for that belief was not any express statement to that effect, but the absence of any communication from the purchaser. Cohen J said (at 13,414-13,415):

“The solicitors for the [vendors] were entitled to consider not only positive statements of intention but a failure to carry out usual conveyancing procedures in order to gauge if there was an intimation by the [purchaser] that it would not be attending on settlement. The assessment was that in the absence of the usual practices having been carried out the [vendors’] solicitors would not be attending on settlement. That assessment proved to be true. The failure by the [purchaser’s] solicitors to give figures in the usual way was in fact as well as in theory an indication that they would not be in attendance. ... In my opinion the failure to carry out usual conveyancing steps was an indication that the [purchaser] would not be represented at the proposed settlement. The [vendors] did not attend that settlement, not because they were unwilling or not ready to complete but because the failure of the [purchaser’s] solicitors to carry out usual steps was a clear intimation that they would not be attending.

In my opinion the [vendors] by their solicitors were entitled to accept that intimation and to avoid the additional expense and trouble of travelling to Sydney for a settlement which they rightly anticipated would not take place. They were in my view ready, willing and able to complete on the day in question and, upon breach by the [purchaser] they were entitled to give a notice terminating the contract.”

The same analysis applies in the present case.

68 Counsel for the purchasers submitted that because there was no evidence as to the period of notice, the mortgagee and the administrator would have required in order for the vendor to be in a position to complete, the vendor did not establish its readiness, willingness and ability to complete. He submitted that the purchasers could have turned up at any time up to the last minute identified in the notices to complete, and if the vendor was not then ready, willing and able to complete the vendor would have been in breach. Reliance was placed on the Privy Council decision in Union Eagle Ltd v Golden Achievement Ltd (Hong Kong) [1997] UKPC 5; [1997] AC 514 where the Privy Council held that the vendor was entitled to terminate a contract for the sale of land where completion was due to take place before 5pm on a certain day with time in every respect to be of the essence of the agreement, and where the purchaser tendered payment 10 minutes after the time for completion had passed.

69 It is unnecessary to consider this part of the reasoning of the Privy Council. The submission misses the point. Because the purchasers impliedly intimated that they would not settle and the vendor’s solicitor acted on that intimation, the purchasers dispensed with the requirement that the vendor be ready, willing and able to complete. It is the same as if the vendor had taken all necessary steps to complete. The period of notice which the vendor’s solicitor would have needed to give to the mortgagee and administrator in order to put the vendor in that position is not relevant.

70 For these reasons, I conclude that the vendor validly terminated each contract. It was entitled to forfeit the deposits as it did. It is entitled to damages for loss of bargain. Those damages are agreed.

71 I direct that counsel for the defendant bring in short minutes of order in accordance with these reasons. The plaintiffs will be liable to pay the defendant’s costs. The parties were agreed that questions of interest and costs as between Lumley General Insurance and the plaintiffs should be argued on a date to be fixed following the delivery of judgment. I will stand the proceedings over to a convenient date in order for that to be done. I also direct that solicitors or counsel for Lumley General Insurance bring in short minutes of order in accordance with these reasons and in accordance with the agreement between the parties recorded in exhibit 1.

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LAST UPDATED:
9 February 2010