Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd

Barrak Corporation Pty Ltd (the purchaser) appealed from a decision of Bergin CJ in Eq concerning the termination of a contract for the sale of land at 63 Victoria Road, Parramatta. The vendor, Jaswil Properties Pty Ltd, had purported to terminate the contract on the basis that the purchaser had failed to complete the transaction by the date stipulated in a notice to complete. The purchaser contended that the vendor was not entitled to terminate because the vendor itself was not ready, willing, and able to complete due to an improperly executed transfer document.

The central legal issues before the Court of Appeal were whether the vendor was entitled to terminate the contract, and if not, whether the purchaser was entitled to equitable relief against the termination, particularly in light of the vendor's conduct and the principles established in *Tanwar Enterprises Pty Ltd v Cauchi*. The court also had to consider the purchaser's responsibility for serving the form of transfer and the vendor's alleged inability to complete by reason of the transfer being inappropriately executed.

The Court of Appeal found that the vendor was not ready, willing, and able to complete the contract by the stipulated date because the transfer document it had prepared was not appropriately executed. Consequently, the vendor was not entitled to rely on the purchaser's failure to complete as a ground for termination. The court also determined that the purchaser was entitled to equitable relief against the termination, applying the principles from *Tanwar Enterprises Pty Ltd v Cauchi* which consider the conduct of the vendor.

The appeal was dismissed, and the orders made by Bergin CJ in Eq were set aside. The cross-appeal was allowed, with a declaration that the contract was not terminated by the purchaser's notice of termination dated 26 February 2015. The matter was remitted to the Supreme Court for the determination of the vendor's claim for damages, and the purchaser was ordered to pay the vendor's costs in the court below and on appeal.