Alexus Pty Ltd v Pont Holdings Pty Ltd - [2000] NSWSC 1171

Reported Decision: [2000] 10 BPR 18,371
[2001] ANZ ConvR 159
[2001] NSW ConvR 55-964

New South Wales

Supreme Court

CITATION: Alexus Pty Ltd v Pont Holdings Pty Ltd [2000] NSWSC 1171

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2716/2000

HEARING DATE(S): 28 November; 1, 6 December 2000

JUDGMENT DATE: 14 December 2000

PARTIES :

Alexus Pty Limited (P)
Pont Holdings Pty Limited (D)

JUDGMENT OF: Young J

COUNSEL : M Cashion SC and C Stomo (P)
M Walton SC (D)

SOLICITORS: Gunn Hamilton & Blay (P)
Gells (D)

CATCHWORDS: CONVEYANCING [64]- Notice to complete- Whether vendor ready for completion at time of notice- Inability of vendor to provide jetty as promised- Notice to complete invalid EQUITY [397]- Specific performance- Readiness- What is covered.

CASES CITED: Abraham v Mallon (1975) 1 BPR 9157
Bahr v Nicolay (No 2) (1988) 164 CLR 604
Caleo Bros Pty Ltd v Lyons Bros (Aust) Pty Ltd (1980) 1 BPR 9496
Darter Pty Ltd v Malloy [1993] 2 Qd R 615
Doyle v East [1982] 1 WLR 1080
Dyster v Randall & Sons [1926] Ch 932
Finnegan v Allen [1943] KB 425
McNally v Waitzer [1981] 1 NSWLR 294
Measures Bros Ltd v Measures [1910] 2 Ch 248
Oscar Chess Ltd v Williams [1975] 1 WLR 370
Ping v Pearce Paradise Pty Ltd (1982) 2 BPR 9419
Prosper Homes Ltd v Hambros Bank Executor & Trustee Co Ltd (1979) 39 P & CR 395
Tildesley v Clarkson (1862) 30 Beav 419; 54 ER 951

DECISION: Orders made.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG J

THURSDAY 14 DECEMBER 2000
2716/2000 - ALEXUS PTY LIMITED v PONT HOLDINGS PTY LIMITED
JUDGMENT
1    HIS HONOUR: The plaintiff as vendor and the defendant as purchaser entered into an agreement to buy 3/10 St Georges Crescent Drummoyne. The contract was in the 1996 edition of the standard form. The purchase price was $1,250,000 with a 10% deposit. The cover sheet of the contract, when defining “inclusions” marked the word “jetty”.
2    The contract was subject to a series of special conditions. Special condition 29 provided for notices to complete. Paragraph 29.1 reads as follows:

“If either party is unable or unwilling to complete by the completion date, the other party shall be entitled at any time after the completion date to serve a notice to complete making the time for completion essential. Such notice shall give not less than 14 days notice after the day immediately following the day on which the notice is received by the recipient of the notice. A notice to complete of such duration is considered by the parties to be reasonable and sufficient to render the time for completion essential.”

3    The completion date was defined as the 42nd day after the date of the contract (18 June 1999) so that notices to complete could be issued, in appropriate circumstances, after 30 July 1999.
4    Special condition 42A is as follows:

“The vendor grants to the purchaser the licence to occupy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWSC 1171
Decision Date: 14 December 2000

CaseChat Overview and Summary

Alexus Pty Ltd brought proceedings against Pont Holdings Pty Ltd concerning a property sale agreement. The dispute centred around whether the vendor was ready for completion at the time the notice to complete was issued and whether the inability of the vendor to provide a jetty as promised rendered the notice invalid. The case was heard in the Supreme Court of Victoria.

The court had to determine if the notice to complete was validly issued and whether the vendor was ready for completion. The court also needed to examine the concept of readiness and its requirements in the context of specific performance in equity. The central issue was whether the failure to provide a jetty constituted a breach of the contract, which would render the notice invalid and affect the vendor's readiness.

The Supreme Court found that the notice to complete was invalid because the vendor was not ready for completion. The court held that the vendor's inability to provide the jetty as promised was a significant factor in determining readiness. The court emphasised that readiness encompasses not only the physical ability to transfer possession but also the compliance with all contractual obligations. The failure to provide the jetty was a material breach of the contract, leading to the conclusion that the notice to complete was invalid. Consequently, the vendor was not ready for completion, and the contract was not enforceable through specific performance.

The court ordered that the notice to complete issued by Alexus Pty Ltd was invalid due to the vendor's failure to be ready for completion. The court also ruled that the vendor was not ready for completion, primarily because of the non-provision of the jetty. As a result, Alexus Pty Ltd was not entitled to specific performance of the contract.

Orders