Alexakis v Wan

[2021] NSWCA 172

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Alexakis v Wan [2021] NSWCA 172
Hearing dates:	28 July 2021
Date of orders:	11 August 2021
Decision date:	11 August 2021
Before:	Meagher JA at [1]; Payne JA at [34]; Emmett AJA at [35]
Decision:	Dismiss the appeal with costs.
Catchwords:	CONTRACT – 2018 edition Law Society of New South Wales standard form contract for sale of land – construction – where additional clause 38 provided for payment of deposit in two instalments – where clause 2.3 made time for payment of second instalment “essential” – where deadline for payment not a business day – whether time for payment extended to next business day by clause 21.5 – whether exception to application of clause 21.5 “in the case of clauses 2 and 3.2” engaged
Legislation Cited:	Conveyancing Act 1919 (NSW), s 55(2A)
Category:	Principal judgment
Parties:	Theo Alexakis (Appellant) Chi Hing Wan (First Respondent) Kwan Yee Chan (Second Respondent)
Representation:	Counsel: D A Smallbone with D Edney and A C Smyth (Appellant) D W Rayment with A Smorchevsky (Respondents) Solicitors: Stern Law Solicitors (Appellant) Frank Low Yeung (Respondents)
File Number(s):	2021/116686
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2021] NSWSC 367 Date of Decision: 12 April 2021 Before: Darke J File Number(s): 2020/57530

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent vendors entered into a contract with the appellant purchaser for the sale and purchase of a residential property in Sydney. “Additional” clause 38 provided for the payment of the deposit in two instalments, the first on exchange and the second “on the 4^th month after the contract date”. Clause 2.3 made payment of the second instalment by that time “essential”.

Contracts were exchanged on 4 April 2019. The appellant paid the first instalment on time. The second was paid on 7 August 2019. On 5 August 2019 the respondents purported to terminate the contract for breach by failing to pay the second instalment on or before 4 August 2019.

The appellant brought a suit for specific performance. He argued that the respondents’ termination had been ineffective because the notice was given before the time for payment had expired. That payment was relevantly said to be due on or before 5 August 2019.

The primary judge dismissed the appellant’s claim to specific performance. Clause 38 was construed as requiring the second instalment to be paid during the calendar month that started at the beginning of 5 July 2019 and finished at the end of 4 August 2019. He also found that clause 21.5 did not operate to extend the time for payment to the next business day in circumstances where 4 August 2019 was a Sunday. He did so on the basis that clause 21.5 did not operate to extend time “in the case of clauses 2 and 3.2”, clause 2 making the time or times for payment of…