Blacklaw v Hansen
[1999] WASC 125
BLACKLAW & ANOR -v- HANSEN & ANOR [1999] WASC 125
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 125 | |
| Case No: | CIV:1332/1999 | 29 JULY 1999 | |
| Coram: | MASTER BREDMEYER | 13/08/99 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | IAN BLACKLAW CAROL BLACKLAW KLAUS HAMMERSHOLT HANSEN VILLAGE SETTLEMENT AGENCY (A FIRM) |
Catchwords: | Summary judgment Contract of sale for the purchase of land Repudiation by the vendor Failure to give clear title Purchasers entitled to rescind Duties of a settlement agent Implied condition to use reasonable care and skill of a settlement agent Breach of contract by purchasers' settlement agent Failure to search the title just prior to settlement Failure to discover that a caveat prevented the purchasers getting title |
Legislation: | Nil |
Case References: | Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Eng Mee Yong v Letchumanan [1980] AC 331 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Green v Sommerville (1979) 141 CLR 594 Laurinda Pty Ltd & Ors v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Neagle v Power (1967) SASR 373 Rigg & Ors v Lee Loy Seng [1987] WAR 333 Sibbles & Anor v Highfern Pty Ltd (1987) 164 CLR 214 Webster v Lampard (1993) 177 CLR 598 Craig v Troy (1997) WAR 96 Gold Coast Oil Co Pty Ltd v Lee Properties Pty Ltd (1985) 1 Qd R 416 Hawkins v Clayton (1988) 164 CLR 539 Hawkins v Gaden (1925) 37 CLR 183 Hudson & Neilson v Wiseman (1986) WAR 156 Legione v Hateley (1983) 152 CLR 406 Sinnatamby v Cooper Corporation [1986] WAR 36 Turpin v Bilton (1843) 5 MAN & G 455 Walters v Cooper (1967) VR 583 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- CAROL BLACKLAW
Plaintiffs
AND
KLAUS HAMMERSHOLT HANSEN
First Defendant
VILLAGE SETTLEMENT AGENCY (A FIRM)
Second Defendant
Catchwords:
Summary judgment - Contract of sale for the purchase of land - Repudiation by the vendor - Failure to give clear title - Purchasers entitled to rescind - Duties of a settlement agent - Implied condition to use reasonable care and skill of a settlement agent - Breach of contract by purchasers' settlement agent - Failure to search the title just prior to settlement - Failure to discover that a caveat prevented the purchasers getting title
Legislation:
Nil
(Page 2)
Result:
Application allowed
Representation:
Counsel:
Plaintiffs : Mr P J Gethin
First Defendant : Mr M J Hawkins
Second Defendant : Mrs D M Templeman
Solicitors:
Plaintiffs : Patrick Gethin & Co
First Defendant : Michael Rogers & Associates
Second Defendant : Minter Ellison
Case(s) referred to in judgment(s):
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Eng Mee Yong v Letchumanan [1980] AC 331
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Green v Sommerville (1979) 141 CLR 594
Laurinda Pty Ltd & Ors v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Neagle v Power (1967) SASR 373
Rigg & Ors v Lee Loy Seng [1987] WAR 333
Sibbles & Anor v Highfern Pty Ltd (1987) 164 CLR 214
Webster v Lampard (1993) 177 CLR 598
Case(s) also cited:
Craig v Troy (1997) WAR 96
Gold Coast Oil Co Pty Ltd v Lee Properties Pty Ltd (1985) 1 Qd R 416
Hawkins v Clayton (1988) 164 CLR 539
Hawkins v Gaden (1925) 37 CLR 183
Hudson & Neilson v Wiseman (1986) WAR 156
Legione v Hateley (1983) 152 CLR 406
(Page 3)
Sinnatamby v Cooper Corporation [1986] WAR 36
Turpin v Bilton (1843) 5 MAN & G 455
Walters v Cooper (1967) VR 583
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
(Page 4)
1 MASTER BREDMEYER: This is an application by the plaintiffs for summary judgment against both defendants. The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. In such an application the evidence of the defendants should normally be accepted unless it is inherently incredible or inconsistent with undisputed contemporary documents or other statements by the same deponent: Webster v Lampard (1993) 177 CLR 598 at 608 and Eng Mee Yong v Letchumanan [1980] AC 331 at 341.
2 The second defendant made a number of objections to the affidavits of the plaintiffs. I consider that all of the affidavits of the plaintiffs are in compliance with our rules and are admissible. I am satisfied to the requisite standard that the plaintiffs have proved the following facts. The plaintiffs contracted with the first defendant to purchase his property at 42 Boonooloo Road Kalamunda for $164,000. The contract was in the form of an offer and acceptance dated 6 June 1998 and incorporated the 1998 Joint Form of General Conditions for the Sale of Land as published by the Law Society of WA and the Real Estate Institute of WA. The contract required a deposit of $1000 and the balance to be paid on settlement day fixed as 11 August 1998.
3 By a written agreement the plaintiffs appointed the second defendant as their settlement agent. Their dealings were with a Mrs Sheila Anne Palfreyman. She made a search of the title, Certificate of Title Volume 1718 Folio 869, and found it had a current mortgage to Challenge Bank but was otherwise free of encumbrances. On the settlement day the plaintiffs produced a bank cheque for the balance of the purchase moneys plus a sum due for rates and taxes and in return their agent received a transfer of the land, the Certificate of Title and a discharge of mortgage from Challenge Bank. Mrs Palfreyman lodged those documents with the Department of Land Administration on the same day. Some time later she found out that the dealing was stopped as a caveat had been placed on the land by Mr Freddie Kay Hammersholt Hansen, the father of the first defendant. The caveat was an absolute caveat lodged on 7 August 1998, that is seven days before the settlement day. Mr Freddie Hansen's statutory declaration in support of the caveat recites how he supplied $97,000 of the purchase price and his son $10,000 when the property was purchased on 5 December 1991. He says that there was an oral agreement between him and his son that his son would not dispose of the property without reference to him or repayment of the moneys owed to him and that he was
(Page 5)
- the beneficial owner of the land. The caveat was lodged on the afternoon of 7 August and the title was immediately marked in big letters "SUBJECT TO DEALING". Mrs Palfreyman did not search the title between 7 August and 14 August so she did not know that the caveat had been lodged. The first defendant spent the net proceeds of the sale received on settlement on the purchase of another property. The plaintiffs went into possession of the property on the settlement day.
4 The first defendant, Mr Klaus Hansen, did not know at the time of settlement that his father had lodged a caveat against the title. The first defendant instructed his solicitors, Michael Rogers & Associates, to take action to remove the caveat and they commenced an action on 26 August 1998 in this Court CIV 1984 of 1998 (the caveat action).
5 On 6 October 1998 Mr Ian Blacklaw phoned Mr Michael Rogers for legal advice about the caveat. The plaintiffs had had previous legal dealings with Mr Ian Wilson who was a partner in the Kalamunda firm of Wilson & Rogers until his death. Mr Blacklaw said he was aware that the transfer of ownership of the property was stalled in the Land Titles Office pending the resolution of the title dispute between the first defendant and his father. Mr Rogers advised him that he had taken proceedings on behalf of the first defendant for the removal of the caveat and that, in his opinion, the first defendant was likely to succeed in that application. He told Mr Blacklaw that he could not act for him as he was acting for the first defendant and that the plaintiffs needed to get independent legal advice. He told the plaintiff that he could await developments in relation to the case. According to Mr Blacklaw, the solicitor told him he was not to worry because he thought it would all fizzle out.
6 The plaintiffs next contact was with Mr Rogers again on 26 February 1999. On that occasion both plaintiffs called to see him at his office at Kalamunda. They told him that they wanted to raise a mortgage over the property at 49 Boonooloo Road which was required in connection with the purchase of a business. Mr Rogers told them it was not possible for them to register a mortgage as the caveat was still on the title. He discussed with the plaintiffs the stage reached in the court case between the first defendant and his father and he recommended again that they consult an independent solicitor of their choice as he was not in a position to advise them of their rights and remedies.
7 The caveat action commenced by way of an originating summons. In the affidavit in support Mr Klaus Hansen said that his father supplied $97,000 towards the purchase price in December 1991. He personally
(Page 6)
- supplied $10,000. The purchase price was $105,000. He said that his father and mother had previously been living at 5 Ledger Road, Goosberry Hill. They had run a Danish patisserie which failed and their house property had to be sold in order to meet the debts of the failed business. His father told him that the sum of $97,000 approximately was left over from the sale of 5 Ledger Road and that is should be used for the purchase of a property for the benefit of his mother which would be registered in Klaus' name in trust for his mother. His father told him the property should be acquired in the son's name because that way it would not be subject to any claim by creditors of the failed Danish patisserie whose debts may have been guaranteed by his mother. Klaus discussed the position with his mother and she was quite happy with this arrangement.
8 The action to remove the caveat was opposed and was case managed. On 26 October 1998 Miller J extended the caveat until 16 November 1998. On that day Steytler J extended the operation of the caveat until 18 January 1999 and ordered that the plaintiff file a statement of claim, the defendant file a defence etc. On 15 January 1999 Miller J ordered that the caveat be extended until 1 September 1999. On 13 April 1999 the plaintiff in that action moved for a judgment to remove the caveat in default of filing a defence. That application failed before McKechnie J who extended the time for the defendant to file a defence until 4 pm on that day. The second defendant issued a defence and counter-claim and a third party notice against Mrs Palfreyman. The action was admitted to the expedited list on 4 May 1999. On 13 July 1999 the plaintiff was given leave to file and serve a request for further particulars and orders were made about that. The second defendant answered that request on 9 July 1999.
9 The plaintiffs sought independent legal advice. I do not know exactly when that was, but on 23 February 1999 their solicitor, Patrick Gethin, wrote a letter to the solicitors for the second defendant. On 22 March 1999 the plaintiffs' solicitor wrote to Mr Klaus Hansen in these terms:
"Dear Sir,
Ian and Carol Blacklaw - Purchase of 49 Boonooloo Road, Kalamunda
As you know we are solicitors for Ian Blacklaw and Carol Blacklaw who entered into an agreement with you dated 6 June
(Page 7)
- 1998 for the purchase by them form you of the house and land at 49 Boonooloo Road, Kalamunda which is more particularly described as Lot 18 on Diagram 37811, the whole of the land in Certificate of Title Vol 1718 folio 869 for a price of $164,000.
Our clients have paid the purchase price and the purchasers portion of rates and water rates thereon.
You are in breach of a fundamental term of the agreement which was to transfer the property to our clients free from all encumbrances. At the time of settlement you received the full purchase monies and other monies due under the agreement not withstanding that there was a caveat lodged against the title by your father.
We are instructed that the full purchase price was paid to your agent on the 11 August 1998.
Your failure has continued for over 7 months. There is litigation between you and your father concerning the dispute related to the caveat lodged by him. In all the circumstances there seems to be no prospect that you will comply with your obligation to provide good title to the property as required by the contract or at all. In fact there is no reason to believe that you will necessarily have a title to deliver to our clients at any time.
We hereby give you notice that the agreement for the sale of the above land is rescinded and that you are required to pay by midday on Friday 26 March next by bank cheque in favour of our client at this office:-
1. $170,065.75 being the purchase price together with interest thereon at the rate of 6% per annum pursuant to the Supreme Court Act 1936.
2. Your unqualified undertaking to refund to our clients the monies paid by way of them in respect of portion of rates, water rates and other charges on the property, the amount paid by them by way of settlement costs and stamp duty together with interest thereon at 6%.
The latter items have not been ascertained by us because that knowledge is held by the firm that acted as Settlement Agents
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- for our clients and we have yet to extract that information from them.
Your failure to comply with the above conditions will result in a writ being issued against you forthwith for refund of the monies together with interest and costs."
10 The first defendant's solicitors replied to that letter on 23 March 1999, and I quote from the relevant part of that letter:
"I note that your clients decided to rescind the sale and that they are asking our client to repay the sum of $170,065.00 within 3 days together with interest at the Supreme Court rate plus rates apportionment.
There are a number of matters which should be drawn to the attention of your clients as follows :-
1. Under the 1994 Joint Form of General Conditions for the Sale of Land which are incorporated by reference in the Contract of Sale between our respective clients relating to 49 Boonooloo Road, neither the Purchaser nor the Vendor is entitled to terminate the Contract on the grounds of the other party's default in performing or observing any obligation imposed on that other party under the Contract unless the party not in default has first given the party in default notice in writing specifying the fault complained of which notice must require the default to be remedied within the period stipulated in the Notice being not less than 14 days. No such notification has been given by your client.
2. When your client's realised that the Caveat against 49 Boonooloo Road could not immediately be lifted they made an election to affirm the Contract of Sale and abide the result of the Court case pending in the Supreme Court between our client and his father Freddie Hansen. They did so by entering into possession of the property and receiving rent from the tenants that they selected knowing that an action was pending for removal of Caveat. I personally discussed the situation with Ian Blacklaw over the telephone on the 26th October 1998. It appears to me that your clients are now legally estopped from claiming
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- cancellation until the outcome of the Court case is known because of their affirmation of the Contract.
- 3. Even if one assumes that your client is entitled to cancel the sale (which is denied), the figure of $170,065.00 claimed against our client is wrong as it presumably includes stamp duty which is refundable in full if the sale does not proceed under the provisions of Section 15A of the Stamp Act.
4. The claim for interest is inconsistent with the fact that your client has had possession of Boonooloo Road and has received rental income from the property.
Leaving aside technical issues, your clients are well aware that our client is doing all that he can to remove the Caveat. There is an extensive set of pleadings and hopefully the matter will be listed for trial later this month.
If your clients are intent on cancelling the sale, do they also intend to hand back possession of 49 Boonooloo Road to our client and if so on what date.
We do not have authority to accept service of process on behalf of our client who is about to go to Darwin for 6 weeks where he will be working on a rig in the Timor Sea."
11 The plaintiffs or their tenants vacated the property on 3 May 1999. They returned the keys to Blundells Pty Ltd, the real estate agents who were agents for the vendor when the property was sold.
12 The first defendant breached the contract of sale by failing to provide title to the plaintiffs on settlement free of encumbrances. However, by going into possession and not taking any immediate action to rescind, I consider that the plaintiffs waived that breach: see Green v Sommerville (1979) 141 CLR 594 at 595. The plaintiffs by their solicitors letter of 22 March 1999, quoted above, purported to rescind the contract with effect from 26 March 1999 for the first defendant's failure of a fundamental term, namely to transfer title to the plaintiffs free of encumbrances.
13 The first defendant has argued that the plaintiffs were not able to rescind without first giving 14 days notice of default under cl 18 of the
(Page 10)
- Joint Form of General Conditions for the Sale of Land mentioned above. Clause 18 reads:
"18. Default Notice
Except as otherwise specifically provided in these Conditions:-
(a) the Vendor is not entitled to forfeit any money paid by the Purchaser or take or recover Possession of the Property on the ground of the Purchaser's default in performing or observing any obligation imposed on the Purchaser under the Contract: and
(b) neither the Vendor nor the Purchaser is entitled to terminate the Contract on the ground of the other's default in performing or observing any obligation imposed on that other party under the Contract; unless
(i) the party not in default has first given to the party in default Notice in writing specifying the default complained of, which Notice must require that the default be remedied within the period stipulated in the Notice; and
(ii) the party in default fails to remedy the default within the period stipulated in that Notice.
(3) The giving of a Notice under this Condition does not prejudice the right of either party to give a further Notice under this Condition.
(4) This Condition will not apply where either party repudiates the Contract."
(Page 11)
14 I consider that cl 18(4) applies and that the first defendant, by failing to give clear title within a reasonable time after 22 March 1999, repudiated the contract. Hence no notice of default was required by cl 18.
15 The first defendant also argued that by cl 17 of the Joint Conditions time was made of the essence. He argued that the plaintiffs waived that by going into possession on settlement and not taking any immediate steps to rescind the contract. Following the waiver of such a clause it was necessary for the plaintiffs to give to the first defendant a notice making time of the essence again before taking steps to rescind. See Green v Sommerville (supra) at 600. He argued that the letter of 22 March 1999 does not achieve this.
16 I agree that the letter of 22 March does not make time of the essence. Nevertheless, I consider the first defendant repudiated the contract. He was not able to give clear title by 22 March or within a reasonable time, say 14 days or 21 days, thereafter. And I consider it was not essential for the plaintiffs to make time of the essence.
17 I rely on Laurinda Pty Ltd & Ors v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623. In that case the plaintiff lessee went into possession under a lease of a shop in a shopping centre. It was an implied term that the plaintiff would receive a registered lease or a lease in registrable form within a reasonable time. This did not happen. Nine months went by. The lessee then gave to the lessor 14 days notice to provide a registered lease. The lease was not forthcoming. The plaintiff obtained a declaration from the trial judge in the Queensland Supreme Court, which was ultimately upheld by the High Court, that the lessor had repudiated the lease. There was no clause in the contract making time of the essence. Three of the learned judges of the High Court held that the 14 days notice given by the lessee was ineffective to make time of the essence. Four of the learned judges held that the time given in the notice (14 days) was not reasonable in all the circumstances to obtain a registrable lease. Nevertheless, despite the ineffectiveness of this notice, the lessor's conduct in failing to deliver to the plaintiff a registrable lease within a reasonable time was a repudiation of the contract which entitled the lessee to rescind. I apply that by analogy to this case. Despite the failure of the letter of 22 March to make time of the essence, the vendors conduct in failing to provide good title within a reasonable period after the date of that letter was repudiation of the contract.
18 I also rely on Rigg & Ors v Lee Loy Seng [1987] WAR 333. That case concerned a contract for the sale of shares in a company the only
(Page 12)
- asset of which was a farm. The General Conditions for the sale of land provided by the Law Society applied. Time was made of the essence and cl 16 thereof was similar to cl 18 in the contract before me. The vendor was not entitled to enforce his remedies unless he had first given 14 days notice of default. The clause was silent on repudiation. On the settlement day the vendor was due to receive $4,050,000. On the morning of that day the purchaser's solicitor advised the vendor's solicitor that it would be impossible to settle that day and, as things stood, "our clients can give no commitment as to when settlement may take place or whether it will take place at all". The vendor immediately rescinded. No notice of default was given under cl 16. The Full Court held that the letter of the purchaser's solicitors, when considered in the light of the purchaser's general conduct leading up to that day, amounted to repudiation and, that being so, it was not necessary for the vendor to give a notice of default. The vendor's rescission was held valid and sounded in damages.
19 I also rely on Sibbles & Anor v Highfern Pty Ltd (1987) 164 CLR 214. In that case the plaintiffs were the purchasers of a home unit under a terms contract of sale. The vendor purported to rescind for non-payment of purchase moneys. The plaintiffs sought a declaration that the contract of sale was void and asked for the return of $37,411 they had paid under it. Section 72 of the Property Law Act (Qld) provided that a vendor could not terminate an instalment contract by reason of default on the part of the purchaser in payment of an instalment or sum of money due and payable under the contract, until the expiration of 30 days after service of a notice upon the purchaser in a specified form. No such notice was sent. Nevertheless, the court held that there was abundant evidence to conclude that the purchaser had repudiated the contract. This evidence went beyond simply non-payment of purchase moneys. The purchasers had repudiated the contract by demonstrating their intention no longer to be bound by it. The present case is not as strong on the facts as that in Sibbles (supra). The first defendant was endeavouring in the caveat action to have the caveat removed in order to give good title to the plaintiffs. Nevertheless, I consider that the failure to give a notice of default and the failure to make time of the essence were not essential preliminaries to the plaintiffs exercising their right to rescind. Up until the letter of 22 March 1999 I consider the plaintiffs had waived their right to rescind. They accepted the first defendant's default and lived in hope that he would be able to give clear title. But I consider their letter of 22 March is a clear election to no longer tolerate that state of affairs. It is a notice of rescission. It would have been better if the plaintiffs had given, say 14 or 21 days notice of default, thus giving the first defendant a
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- chance to remedy his default and provide clear title, but, even without such a notice, it is clear that the first defendant was not ready, willing and able to give clear title either on 22 March or within a reasonable time thereafter. I note that, although he had commenced the caveat action with a view to giving clear title, no success had been achieved. I note that by order of the court in that action made on 15 January 1999 the absolute caveat on the title was continued in force until 1 September 1999. Thus the first defendant was not able to give clear title on 22 March or within a reasonable time thereafter. I consider that this failure clearly amounts to repudiation and justifies rescission.
20 I consider that the plaintiffs have proved their case to the requisite standard on an application for summary judgment against the second defendant for breach of contract. I am willing to imply into the contract with the second defendant a term that the agent would carry out her duties with the reasonable standard of care and skill expected of a settlement agent. I consider it is appropriate to imply that term on the principles of Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347. I consider that term is reasonable and equitable; that it is necessary to give business efficacy to the contract; that is so obvious that it goes without saying, that it is capable of clear expression; and that it does not contradict any express term of the contract. If needs be, I am willing to amend par 10 of the statement of claim to plead such an implied term. That being so, I consider that the second defendant breached this term by not carrying out a check search shortly before settlement on 11 August 1998. Any settlement agent using reasonable skill and care would have carried out such a search. If she had done so, she would have discovered the caveat and not proceeded to settlement. I note from the affidavit of Mr Hyde, the Registrar of Titles, that the Titles Office provides a check search facility which enables conveyancers, immediately prior to settlement of dealing, to check whether there has been any action on the certificate of title since the initial search was obtained for the preparation of documentation. The Office provides a check search certificate. All this is set out in a book supplied by the Land Titles Office, "Land Titles Registration Practice". Mr Hyde says that this book is widely used by solicitors and settlement agents.
21 On the standard of skill and care expected from a settlement agent, I respectfully adopt the view of the South Australian Full Court in Neagle v Power (1967) SASR 373 at 376 per Bray CJ in relation to land brokers in that State which I consider can be equated with settlement agents in this State:
(Page 14)
- "What then is the extent of duty of a licensed land broker to his client, whether imposed by contract or by tort? It is surely the ordinary duty to use reasonable care and skill in the exercise of a skilled occupation. Mr. Boylan complains that there was no evidence of the practice of land brokers or of the standard of care normally exercised in that occupation. Such evidence has not been thought necessary in the case of actions against solicitors. The Court presumably knows for itself what the ordinary reasonably prudent and careful solicitor ought to know and to do. The licensed land broker is licensed as a fit and proper person for transacting business under the provisions of the Real Property Act, 1886-1963 (s. 271) and, as Chamberlain J. points out, that section equates his charges for such business with those of a solicitor. I would not be prepared to assent to the proposition that his duty of care is for all purposes connected with the Real Property Act 1886-1963 identical with that of a solicitor, but I think that at least for the purpose of the transaction of routine business it must be so. It may be, as Mr. Boylan contends, that licensed land brokers ought not to be expected to know the niceties of the law. But we are not concerned to fix the appellant with knowledge of the niceties of the law, but with whether a licensed land broker can reasonably be expected to know that, if a purchaser pays out the full value of land subject to mortgage without any proof that the mortgage has been discharged, he is in great danger of losing his money. I do not think the appellant would contend that he did not know that."
22 Similar words were said by Chamberlain J at 383 which I also quote:
"… A licensed land broker is therefore held out as one fit and proper not only to prepare Real Property Act documents, but to transact business under the provisions of the Act, and for this purpose his fees, and in my opinion his responsibilities, are identified with those of a solicitor. A licensed land broker therefore, who undertakes to act for one or both of the parties to a dealing with land under the Real Property Act 1886-1963, undertakes that he possesses the requisite knowledge, and will exercise the necessary degree of care and skill, to protect the interest or interests of those for whom he acts. So far as a purchaser is concerned, this will involve at least taking steps to see that in exchange for his money he obtains a registrable
(Page 15)
- instrument ensuring a title to whatever he has contracted to buy."
23 I consider the first defendant repudiated the contract which thus justified the plaintiffs' rescission. I consider that the first defendant has no other defence open to him and has offered no other reason why there ought to be a trial of the action. He has no arguable defence of estoppel. There was no representation by the plaintiffs that they would accept for a stipulated period of time the lack of a title. The defendant did not act on the plaintiffs' representation to his detriment in commencing the caveat action. The defendant launched that action to rescue himself from a mess. He was bound contractually to provide clear title. He launched that action to meet his contractual obligations.
24 I have heard and read the second defendant's submissions. I consider she has raised no question of fact or law, or why for any other cause, summary judgment should not be given against her.
25 I propose to order summary judgment against both defendants. The liability is to be joint and several. Given that the first defendant got the purchase moneys and the second defendant did not, I will order that, if the plaintiffs recover the judgment sum from the second defendant, the first defendant is to indemnify the second defendant to the extent of the purchase moneys received by him.
26 I will hear the parties on the details of the orders and on costs.
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