Amaya v Everest Property Holdings Pty Ltd

The case of *Amaya v Everest Property Holdings Pty Ltd* concerned a dispute between purchasers and a vendor regarding the failure to complete a property sale. The purchasers, Amaya and Firmstone, sought to appeal decisions made in favour of the vendor, Everest Property Holdings Pty Ltd. A separate appeal, *Sarkar and Islam v Everest Property Holdings Pty Ltd*, was also before the court.

The primary legal issues before the Court of Appeal were whether the vendor had validly terminated the contract of sale and, in particular, whether the vendor had fulfilled its obligation to provide an occupation certificate within the meaning of the *Environmental Planning and Assessment Act 1979* and its associated regulations. This involved determining whether the requirements for a fire certificate and schedule to "accompany" the occupation certificate were ongoing obligations after the certificate had been issued. A related contractual issue concerned whether the vendor had, by its conduct, dispensed with the purchasers' obligation to perform a condition precedent.

The Court of Appeal considered the principle that a party may be dispensed from performing a condition precedent if the other party intimates, by words or conduct, that performance would be useless. The court examined the significance of normal conveyancing practice in establishing reliance on such an intimation. Regarding the statutory obligation, the court held that the requirement for the fire certificate and schedule to accompany the occupation certificate referred to the time of the certificate's issue, not an ongoing obligation thereafter.

The Court of Appeal allowed the appeal in *Sarkar and Islam v Everest Property Holdings Pty Ltd* with costs, while dismissing the appeals in *Amaya v Everest Property Holdings Pty Ltd* and *Firmstone v Everest Property Holdings Pty Ltd* with costs. Parties were directed to bring in short minutes for the appropriate orders.