Aprilia Pty Ltd v Hawkins

[2003] QCA 206

SUPREME COURT OF QUEENSLAND

CITATION:	Aprilia P/L v Hawkins [2003] QCA 206
PARTIES:	APRILIA PTY LTD ACN 010 017 679 (applicant/respondent) v DAVID CHARLES HAWKINS (respondent/appellant)
FILE NO/S:	Appeal No 4456 of 2002 SC No 3952 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 May 2003
DELIVERED AT:	Brisbane
HEARING DATE:	19 May 2003
JUDGES:	Davies JA and White and Wilson JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed

CATCHWORDS: CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - CAVEATS AGAINST DEALINGS - LAPSE, REMOVAL AND WITHDRAWAL - REMOVAL - where appellant lodged a caveat over land the subject of a contract of sale - where primary judge ordered removal of caveat as, in his view, respondent lawfully terminated the contract because of appellant's failure to complete purchase - whether caveat ought to have been removed

CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE - COMPLETION - where time was of the essence of the contract - where time for completion passed - where respondent gave appellant further notice to complete - where letter did not state consequences of failure to complete - where completion did not occur but appellant nominated another date for completion - whether respondent's letter provided a reasonable time for completion

CONTRACTS - GENERAL CONTRACTUAL

PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS

- OTHER CASES - where amendments apparently made to development approval - where appellant unaware of amendments - whether implicit from terms of contract that vendor was under an obligation to disclose alterations - whether respondent made a misrepresentation by silence that there had been no alteration to approval

COUNSEL:	L D Bowden for the appellant A M Daubney SC, with K L Jackson, for the respondent
SOLICITORS:	John M O'Connor & Company for the appellant Griffin Solicitors (Coolum) for the respondent

DAVIES JA: This is an appeal against a judgment of the Supreme Court removing a caveat. The respondent is the owner of land over which the appellant lodged a caveat on 18 March 2002 which was subsequently registered. The appellant claimed his interest as caveator on the basis of a contract of sale of the land from the respondent to him dated 3 September 2001.

The learned primary judge ordered removal of the caveat because, in his view, the respondent lawfully terminated the contract because of the appellant's failure to complete on 26 April 2002.

In this Court, as at first instance, the appellant submitted that the respondent had not lawfully terminated the contract on the above date because:

1. the time allowed by the notice to complete, from 22 April

2002 to 26 April 2002, was unreasonably short and invalidated
the notice; alternatively,

2.    the notice was invalid because the appellant was not

ready, willing and able to complete the contract according to
its terms when the notice was given.

The contract to which I have referred provided that time was of the essence. However, the time fixed by the contract for completion went by without completion having occurred and time

ceased to be of the essence.

After the appellant's caveat was lodged, the respondent's solicitors wrote to the appellant's solicitors on 21 March asserting that the contract had been terminated by the respondent. The appellant's solicitors responded by letter of 26 March denying that the contract had been terminated and advancing reasons why it said it was not. The respondent's solicitor replied to this by letter dated 28 March accepting the appellant's position and withdrawing the notice contained in its letter of 21 March. However, by that letter of 28 March it purported to make time of the essence of the contract and called upon the appellant to settle on 22 April.

The appellant did not settle on 22 April but on that date its solicitors wrote to the respondent's solicitors advising that its client was not in a position to settle that day,

apologising for the lateness in giving that advice, advising
that the appellant was obtaining finance but that the
financier had not yet completed its security documents and
requesting that settlement "now be rescheduled for this Friday
to allow our client's financier sufficient time to be ready to

help complete the purchase".

The letter went on to deny that time had become of the essence
principally on the basis that the respondent's letter of 28
March did not operate as a valid notice to complete because
"it does not state the consequences of not settling on the

date nominated by your client for completion".

On the same day the respondent's solicitors replied in the
following terms:
"Much against our better judgment we are instructed to agree
to the extension of time for settlement until Friday 26 April

2002 with time to remain of the essence of the contract.

For the avoidance of any further doubt -

(a) we refer to the passage of time between the making of the

contract and now;

(b) we refer to the previous notices given by our client

which insist on performance by your client;

(c) we refer to the notice given in our letter of 28 March

2002;

(d) we note that your client has accepted, whether by his
actions or his silence that he has had all reasonable
opportunities to perform the contract; and

(e) without prejudice to our client's position as at today, if your client does not perform on Friday 26 April 2002 then our client will be entitled to treat the contract as

discharged by your clients non performance and our client

intends to exercise its right to do that."

The appellant did not respond to this letter and failed to made below and which are repeated in this Court and then pass on to deal with the further submission advanced for the first time by Mr Bowden today.

settle on 26 April. Accordingly on that date the respondent's
solicitors wrote to the appellant's solicitors purporting to
terminate the contract and forfeit the deposit.

The first argument was, and is, that the period from 22 April to 26 April was unreasonably short and consequently that the letter sent that day did not constitute a valid notice to complete, failure to comply with which entitled the respondent to terminate the contract.

In order to determine that question it is necessary to look at that letter in its context. And, as the learned primary judge recognised, there were two important aspects of that context.

The first was that the respondent on 26 March 2002 had given to the appellant a notice to complete on 22 April 2002, stating time to be of the essence once again. The only reason why, arguably, that was not a valid notice to complete was that it did not state the consequences of not settling on 22 April. And I should add it is unnecessary in this case to consider whether that argument was correct or not.

And the second aspect of the matter which, in my opinion, is important, is that 26 April was nominated by the appellant as the completion date. Together these show, in my opinion, that the period of time in fact allowed for completion was from 26 March to 26 April and that 26 April was a date which the appellant in those circumstances accepted as an appropriate date for settlement.

I would have no doubt, therefore, that the respondent's letter of 22 April was, in the light of those facts, one which provided a reasonable time for completion. Subject to the other arguments it was, in my opinion, a valid notice to complete having the consequences to which I have referred.

The second argument, and the only other argument originally advanced, was that the notice was invalid because for two reasons it was asserted that the respondent was not ready, willing and able to complete the contract. The first of those reasons was, and is, that the appellant, it was said, cannot be bound by its nomination of 26 April as a reasonable time for completion when it was unaware of amendments which had apparently been made to a development approval.

The submission relied in the first place on clauses 38 and 43(b) of the special conditions of the contract. Clause 38 provides, "This contract is subject to the purchaser being satisfied in all respects that the development of the land is feasible in the purchaser's absolute discretion within 15 days after the contract date". In my opinion this clause has no possible relevance in the circumstances of this case, that time having long passed.

Clause 43 is headed "Assignment of Development Approval" and Mr Bowden for the appellant notes that in subclause (a) of that clause the document is said to include any geo-technical reports, plans and specifications. And 43(b) then provides,

"Within seven (7) days from the date of this Contract the deliver all of such documents as it had in this respect within seven days of the date of the contract. What it appears to assert is that the conditions of approval having apparently subsequently altered, it was somehow implicit from those terms that the vendor was under an obligation to disclose this and did not do so.

Vendor must deliver to the Purchaser at least one (1) copy of
all Documents prepared in respect of the Land. If the Vendor
fails to do so, then the period referred to in Clause 38 is
extended by one (1) day for each day that the Vendor is late
in delivering such Documents."

I cannot see how any such obligation can be implied from the above clauses nor do I see how, unless the term is implied, there was any such contractual obligation to disclose any such amendment with the consequence that, absent that disclosure, a notice to complete was invalid.

I should add in this respect that nothing here was said about the effect of the amendment; in particular whether it benefited the appellant or was to his detriment. This may have provided an additional reason why this point was unarguable but it is unnecessary to consider this.

Mr Bowden, however, puts this argument on an alternative basis submitting that there was a representation by silence that there had been no material alteration to the approval which induced the making of a contract to settle on 26 April.

There was no evidence that any material representation was cannot be estopped from relying upon a misrepresentation, there being no unconscionability by the appellant. But, in my opinion, this does not answer the point that there was in fact no material misrepresentation.

made in these circumstances; that is, one which induced the
sending of the letter of 22 April. Nor is there any evidence
to show that the appellant thought that such an alteration
would have been a material one requiring disclosure. Nor, in
my opinion, was the letter of the 22 April a contractual
offer. Rather it was an indication by the appellant that 26
April was a reasonable time within which to settle.

The second reason advanced below was the assertion that the appellant had some contractual entitlement to receive from the respondent a geo-technical report and that the respondent had not supplied it. Nothing in the written contract says or implies any such entitlement or obligation by the respondent to obtain one. Nor is there any assertion in any of the correspondence of that right or obligation. The only mention of it is in the appellant's evidence in respect of a conversation with a director of the respondent during the course of the negotiations for the contract.

In those circumstances it seems to me that there is no basis for saying that there was a contractual obligation in respect of the geo-technical report. If there had been one, one would expect in the circumstances that it would be included in the terms of the contract and none was included.

A third point raised for the first time today by Mr Bowden was asserting that and if it was not supplied, then the obligation to supply that had long since been waived.

that the original development application as approved was not
supplied. I should say in the first place here that the
contractual obligation was to supply the development approval
not the application in the terms in which it was supplied.
Yet the assertion made in the affidavit was that the
application as approved was not supplied. So at best it is
unclear whether in fact the appellant in his affidavit was
asserting that the approval document was not supplied.

Accordingly, in my opinion, the learned primary judge was correct in the judgment which he gave and this appeal must be dismissed.

WHITE J: I agree.

WILSON J: I agree.

DAVIES JA: The appeal is dismissed.

MR DAUBNEY: With costs, please, your Honour.

DAVIES JA: You can't say anything about that, Mr Bowden?

MR BOWDEN: No, your Honour.

DAVIES JA: With costs as assessed.