Coghlan v Pyoanee P/L
[2002] QSC 430
•17 December 2002
SUPREME COURT OF QUEENSLAND
CITATION:
Coghlan v Pyoanee P/L [2002] QSC 430
PARTIES:
PETER CHARLES COGHLAN
(plaintiff)
v
PYOANEE PTY LTD ACN 003 671 109
(defendant)FILE NO:
S6498 of 2002
DIVISION:
Trial
ORIGINATING COURT:
Supreme Court
DELIVERED ON:
17 December 2002
DELIVERED AT:
Brisbane
HEARING DATE:
3-5 December 2002
JUDGE:
Byrne J
CATCHWORDS:
EQUITY – EQUITABLE REMEDIES – SPECIFIC PERFORMANCE – PARTICULAR CONTRACTS – SALE OF LAND – whether contract for the sale of land specifically enforceable
United Dominions Corporationv Shoucair [1969] 1 AC 340
COUNSEL:
Mr D R Cooper SC, with him Mr C L Francis, for the plaintiff
Mr S S W Couper QC, with him Mr R A Perry, for the defendantSOLICITORS:
Porter Davies Lawyers for the plaintiff
Biggs and Biggs as town agents for Colin Biggers & Paisley for the defendant
By a written agreement dated 5 September 2001, the plaintiff (“Mr Coghlan”) contracted to sell his house property at Point Piper to the defendant (“Pyoanee”) for $6,850,000. Completion was due six months from the contract date, although that time was expressed to be not essential. A deposit of more than $340,000 was paid.
Pyoanee intended to re-develop the land. It is not a substantial corporation and required financial assistance to meet the development expenses and to pay the balance of the price. Mr Jamieson, who controls Pyoanee, approached the St George Bank. In mid-February this year, that Bank indicated terms on which it was prepared to lend as much as $8,500,000. To secure repayment, the Bank required a registered first mortgage over the property. Its “Letter of Indication” revealed that only $4,000,000 would be advanced to buy the property, which left Pyoanee to find another $2,500,000 or so to complete the purchase. Mr Jamieson decided to try to get Mr Coghlan to accept delayed payment of a large part of the price.
Completion was due in less than 3 weeks when, on 18 February, Mr Jamieson, a property developer by occupation, went to see Mr Coghlan, formerly a successful businessman, to discuss the prospect of “vendor finance”. When the two men parted that day, they had signed two hand-written documents each recording:
“Agreement Between Pyoanee Pty Ltd and Peter Coghlan. For 38 Wolseley Rd Point Piper.
On settlement Peter Coghlan will receive $3 million plus the deposit paid. The remaining amount $3,507,500 will be made available as a second mortgage at a rate of 8% for 2 years or to completion of sales.6,850,000 – PURCHASE PRICE
342,500 – DEPOSIT3,000,000 – PAID AT COMPLETION OF SETTLEMENT
3,507,500 – SECOND MORTGAGE 8%
6,850,000 –A FEE OF $35,000 TO BE PAID
ON SETTLEMENT ON 4TH MARCH 2002 TO PETER COGHLAN”
Soon afterwards, Mr Jamieson gave one of the documents to his solicitors and the other to Mr Coghlan’s lawyers. He also telephoned Mr Coghlan’s solicitor, Mr Southwell-Keely, to tell him of the arrangement.
Concerned that a second mortgage was disadvantageous to his client’s interests, on 28 February, Mr Southwell-Keely wrote to Mr Coghlan to tell him so. The same day, Pyoanee’s solicitors wrote to Mr Southwell-Keely contending that the 18 February agreement was “binding and effective”, asking that documents be prepared to create the second mortgage, and asserting that “the matter has been set down for settlement on Tuesday 5 March”.
5 March passed without an attempt at settlement. Both sides were unable to complete. Mr Coghlan did not have a certificate of title to deliver. Pyoanee did not have the funds needed to pay the balance of the price.
On 8 March, Mr Southwell-Keely discussed the events of 18 February with Mr Coghlan. A few days later, Mr Southwell-Keely received a draft deed of priority for Mr Coghlan’s execution. Its effect, as Mr Southwell-Keely explained it in a letter to Mr Coghlan dated 14 March, was to give the Bank priority to the extent of $8,500,000 on any mortgagee’s sale. Mr Southwell-Keely also suggested that senior counsel’s advice be taken concerning enforceability of the February agreement. Mr Coghlan’s response, the next day, was to ask his solicitors to “get me out of the stupid mistake I made by signing up for a second mortgage”.
On 2 April, Mr Coghlan’s solicitors wrote to Pyoanee’s solicitors challenging the efficacy of the second mortgage deal, saying:
“…the “agreement” is void for uncertainty as there is no certain provision as to when $3,507,500.00 is to be repaid by Pyoanee Pty Ltd, there is no certain provision as to what is meant by “8%” nor is there any certain provision as to when ‘8%’ will be payable.
Even if … it was found that the parties had entered into a valid agreement on 18 February last, the requirement therein for a second mortgage was plainly intended to be for a second mortgage which provided a valuable security. Clearly, when, as in this case, a property is being purchased for $6,850,000.00, a second mortgage thereof which ranks behind a first mortgage securing a principal sum of $8,500,000.00 plus interest plus costs (vide the draft Deed of Priority which in your letter of 8 March to us you requested our client to execute) is illusory and offers no security at all. …
If … an agreement was reached on 18 February 2002 for the provision of second mortgage finance, then such agreement was plainly harsh, unconscionable and oppressive and would be subject to relief under the relevant contracts review legislation”.
But Mr Coghlan was content to sell on the terms of the September contract. His anxiety was to be allowed to resile from his agreement to accept a second mortgage for a large part of the price.
Pyoanee’s solicitors wrote to Mr Coghlan’s solicitors on 3 April. This letter records Mr Jamieson’s instructions that he had recently had another discussion with Mr Coghlan, who was “reconsidering his position”. The letter continued:
“For the record, our client considers that the written agreement concerning vendor finance is specifically enforceable, however we are not instructed to take any steps until further discussions have taken place”.
To cope with the contingency that Mr Coghlan might not financially support Pyoanee’s acquisition, Mr Jamieson continued to negotiate with the Bank. On 8 April, he wrote to tell the Bank that Mr Coghlan had decided, on legal advice, not to give the second mortgage, which “leaves Pyoanee Pty Ltd with an unexpected shortfall at very short notice”. The letter concluded: “we will endeavour to complete the purchase if possible on the first proposal” – a reference to the Bank’s mid-February indication of a willingness to lend up to $8,500,000, including $4,000,000 to buy the land.
On 11 April, Mr Coghlan’s solicitors supplied Pyoanee’s solicitors with a clear land tax certificate, consistently with the vendor’s obligations under cl 16.6 of the September contract. The letter also sought advice concerning Pyoanee’s development application “pursuant to Special Condition 8(b) of the contract”. Both vendor and purchaser were anticipating that the differences about vendor finance would be resolved somehow and the contract eventually completed.
At about this time, Mr Southwell-Keely heard from Mr Coghlan’s son, Jeremy, that Mr Jamieson may have been bankrupt, and searched. On 12 April, he told Mr Coghlan that Mr Jamieson had recently been bankrupt. Three days later, Mr Evans, Pyoanee’s solicitor in the conveyance, told Mr Southwell-Keely that Pyoanee still wanted vendor finance. Thereafter, without prejudice negotiations took place concerning the terms on which Mr Coghlan might accept a second mortgage securing delayed payment of part of the price. Mr Southwell-Keely met with Mr Evans and Mr Jamieson on 1 May to discuss the issue. The negotiations had not concluded when, in early June, Mr Southwell-Keely’s retainer was terminated and Mr Loel appointed in his place.
On 3 June, Mr Loel wrote informing Mr Evans of the change of solicitors, to say that he was seeking instructions, and to ask Mr Evans to “ensure that your client refrains from making any direct communication with our client”. Although informed of the contents of this letter, Mr Jamieson continued to talk to Mr Coghlan about second mortgage finance. Troubled by this, on 28 June, Mr Loel wrote to Mr Evans protesting that “despite our previous request” – a reference to the 3 June letter – “your client has instigated settlement negotiations with our client”. This did not deter Mr Jamieson who, on 2 July, accompanied by Jeremy Coghlan, went to see Mr Coghlan to discuss the future of the sale.
By early July, the 81 year old, hard-of-hearing, Mr Coghlan had “tired of dealing with” Mr Jamieson and decided that he “just wanted to terminate the whole thing”. His exasperation is understandable. More than nine months earlier, Mr Coghlan had concluded a contract that was relevantly unconditional, requiring payment of the price in six months. But he was getting talk, not payment, and though he was, he said, for some time “reasonably happy” to entertain ongoing suggestions from Mr Jamieson about such things as lowering the amount of vendor finance, eventually he became “sick of Jamieson; … sick of his lies”.
Mr Jamieson discovered that Mr Coghlan was no longer willing to discuss vendor finance when he learned of Mr Coghlan’s solicitors’ letter of 15 July to Pyoanee’s solicitors, which said:
“Our client has received advice that the Contract for the purchase of 38 Wolseley Road is uncertain and unenforceable.
He has also received advice that the Contract is voidable at his option pursuant to the Trade Practices Act 1974 and in equity.
He elects to avoid the Contract.
He has commenced proceedings for orders confirming that the Contract is at an end.
The proceedings have been or shortly will be served upon your client at its registered office.
The reasons for our client’s termination are fully set out in those documents.”
No notice to complete the contract preceded this announcement. Nor had Pyoanee received any prior indication than that, if the negotiations dragged on unacceptably or proved inconclusive, Mr Coghlan might assert that he was no longer obliged to perform his obligations under the September contract.
On 16 July, Mr Coghlan instituted proceedings seeking declaratory relief: that “the written agreement dated 5 September 2001 as varied on 18 February 2002 is uncertain and “unenforceable” or had been “validly determined”. A principal contention in the accompanying statement of claim is that “the September agreement, as varied by the variation agreement, is uncertain or incomplete and unenforceable” because the parties had not reached agreement on “all the terms of the second mortgage”. Alternatively, it was said that misrepresentations by Mr Jamieson had induced Mr Coghlan “to enter into the variation agreement” of 18 February and that, put shortly, these misrepresentations justify Mr Coghlan’s declining to perform the September contract.
Pyoanee’s response was to write to Mr Coghlan’s solicitors on 21 August proposing to complete within at most 10 days, paying $6,507,500 by bank cheque on settlement. In other words, Pyoanee no longer sought to enforce the February arrangement or to suggest that Mr Coghlan was not entitled to prompt, unconditional payment of the balance purchase price.
Pyoanee seeks specific performance of the September contract, accepting by its pleading that the February agreement is “void for uncertainty” because “the terms of the second mortgage were uncertain”. So there is now a consensus that the February agreement always has been ineffective to oblige Mr Coghlan to provide vendor finance. From this, Pyoanee proceeds to contend that, because the February agreement is to be ignored, there is no impediment to a decree requiring specific performance of the obligations the parties assumed under the September contract.
On Mr Coghlan’s case, however, the contract has been infected by the uncertainty of the February agreement and falls with it as equally uncertain. Alternatively, Mr Jamieson’s conduct in connection with the February agreement is said to bar, as a matter of right or else through judicial discretion, enforcement of the anterior contract. The propositions require consideration of the events of and pertaining to 18 February.
Mr Loel, who had commended to Mr Coghlan the Pyoanee proposal that matured into the contract, suspected that Mr Jamieson might try to deal directly with Mr Coghlan after the contracts were exchanged. Anticipating that direct contact between the two men might not be in Mr Coghlan’s interests, and knowing that Mr Coghlan was not keen to deal personally with Mr Jamieson because of earlier difficulties with him in relation to some “heads of agreement” for development of the property, Mr Loel told Mr Jamieson that he did not want him contacting Mr Coghlan. He also mentioned to Mr Jamieson that Pyoanee had been chosen as the purchaser because it had put forward a cash, unconditional contract, with a substantial deposit to be released on exchange of the contracts.
By February, Mr Loel was no longer acting for Mr Coghlan in the sale. Even so, when Mr Jamieson approached Mr Coghlan on 18 February, he must have expected that Pyoanee ’s prospects of securing vendor finance would not have been enhanced by proposing the idea to Mr Coghlan’s new solicitors. Such a perception would have accorded with the reality. Mr Southwell-Keely would have advised Mr Coghlan against the second mortgage arrangement had the idea been put to him.
According to Mr Coghlan, Mr Jamieson arrived at his house claiming to be short of money, saying that he “required a second mortgage” to complete. Without that, “he said he couldn’t go ahead with” the contract. Mr Coghlan recalls being informed that Pyoanee had arranged a first mortgage with the St George Bank to secure repayment of $3,000,000, Mr Jamieson adding that he needed about another “three and a half million” from Mr Coghlan. At first, Mr Coghlan testified that he asked, “What interest would you pay me?”. “8%”, Mr Jamieson replied. In cross-examination, Mr Coghlan agreed that he was the one who had nominated the rate.
The memorandum the two men signed that day refers to an additional payment to Mr Coghlan of $35,000. This, Mr Coghlan explained, was referable to a purchase from a company controlled by Mr Jamieson’s wife of shares in an enterprise called Webmatchit Investments. By February, he thought the shares worthless and wanted to retransfer them for the $35,000 which he seemed to recall having paid for them.
Mr Coghlan said that, if he had known either that Mr Jamieson had been bankrupt or that the Bank’s first mortgage was to secure $8,500,000, he would not have agreed to the second mortgage.
Mr Jamieson testified that he told Mr Coghlan he “would like” a second mortgage, that Mr Coghlan agreed to the idea “basically straightaway”, that he asked Mr Coghlan how much he would like the second mortgage “to be”, and was told, “I need $3,000,000”. Mr Jamieson asked, “Does that mean that you want to leave three and a half millions dollars in?”, to which Mr Coghlan replied, “Yes”. Mr Coghlan chose the 8% interest rate. In discussion about time for payment of the balance price, Mr Jamieson chose two years or “until completion of the development”, telling Mr Coghlan that the plans, which he had brought with him, provided for construction of two houses. As to the $35,000 for the Webmatchit shares, Mr Jamieson recalled Mr Coghlan having raised the topic. Mr Jamieson was, he said, happy to pay the money, not because the shares had any value but because he was content to treat the payment as a “fee” for the indulgence of vendor finance.
According to Mr Jamieson, he did not identify the first mortgagee, mention the amount to be borrowed from that financier, or say that Pyoanee could not buy the property without vendor finance. He agreed that he did not inform Mr Coghlan on 18 February of the bankruptcy but maintained that he had told him of it earlier.
So, there are two main areas of material dispute about the communications that immediately preceded execution of the February agreement: whether Mr Jamieson told Mr Coghlan that Pyoanee (i) could not find the money to pay the balance of the price without vendor finance; and (ii) was intending to borrow $3,000,000.
The first point matters to Mr Coghlan’s dispute that both parties manifested an intention that the September contract was to be taken to be abandoned if the February agreement were to prove legally ineffective to vary the contract. The second relates to a case that the February agreement was procured by Mr Jamieson’s misrepresentations.
Whose account is preferable?
When Mr Coghlan wrote to Mr Southwell-Keely on 15 March, he attributed his commitment to the second mortgage to his own “stupid mistake”, not to any deception practised by Mr Jamieson. Yet he knew at the time (from his solicitors’ letter dated 14 March) that the Bank was seeking priority for an advance of $8,500,000 and of the significance of that fact for the value of a second mortgage. Then there is his solicitors’ letter of 2 April - a letter written by Mr Southwell-Keely after he (i) had Mr Coghlan’s account of what had transpired on 18 February, (ii) knew that the Bank was seeking priority for as much as $8,500,000, and (iii) had taken senior counsel’s opinion on the enforceability of the February agreement. The letter neither challenges the continuing vitality of the September contract nor alleges any trickery by Mr Jamieson. Next, it is not without interest that the 16 July statement of claim did not allege that Mr Jamieson had said that Pyoanee was borrowing $3,000,000 from the St George Bank or could not complete without vendor finance – assertions first notified by an amended statement of claim (para 6A(c)) in mid-October. These things do not support Mr Coghlan’s testimony. There is, however, evidence of a prior statement by him that accords with his testimony that Mr Jamieson spoke of a $3,000,000 borrowing from the Bank.
Mr Southwell-Keely was permitted to give evidence of a “lengthy conversation” with Mr Coghlan on 8 March concerning the events of 18 February. Referring to his contemporaneous note, Mr Southwell-Keely recalled that Mr Coghlan told him that Mr Jamieson had walked into his house at Palm Beach and said, “I’d like a second mortgage on the property”. The amount to be secured was “$3,537,000”. Mr Jamieson described his development plans: he intended to build two houses. No plans were produced. Mr Southwell-Keely’s note recorded Mr Coghlan’s remembering that Mr Jamieson had said that he was “going to borrow $3,000,000 from St George Bank” and had asked what interest rate Mr Coghlan wanted, to which he replied, 8%. The diary also mentions Mr Coghlan’s having told Mr Jamieson, “I don’t want the shares anymore. Will you buy them back?” for $35,000.
It seems more probable than not that Mr Jamieson did tell Mr Coghlan that he was borrowing $3,000,000 from the St George Bank. Mr Coghlan is not shown to have had another source of the information he conveyed to Mr Southwell-Keely on 8 March that the Bank was Pyoanee’s financier. Moreover, it would not be surprising if Mr Jamieson had said that Pyoanee was borrowing $3,000,000 – the sum stated in the February agreement as the amount to be paid on settlement. And Mr Southwell‑Keely’s note records Mr Coghlan’s having told him that Mr Jamieson had said that the Bank was lending $3,000,000. But it does not matter that the idea may have been left to inference rather than conveyed expressly. Whether Mr Jamieson explicitly stated or instead merely insinuated that Pyoanee was borrowing only $3,000,000 from the Bank on the security of a first mortgage, his conduct misled Mr Coghlan into making the February agreement, as Mr Jamieson recognised at the time.
Mr Coghlan knew that Pyoanee planned to spend a lot of money in developing the property. However, he had no reason to suppose that the funds needed to construct the houses were to be borrowed from the Bank, rather than sourced elsewhere. In these circumstances, even if, contrary to my view, Mr Jamieson did not tell Mr Coghlan explicitly that the Bank was lending $3,000,000 to facilitate the purchase, he must have considered that, influenced by what he had said, Mr Coghlan was proceeding on that assumption. And he must have believed that Mr Coghlan, as he testified, would not have agreed to secure payment of more than $3,500,000 secured by a second mortgage postponed in priority to a Bank security for $8,500,000. Yet Mr Jamieson did nothing to dispel Mr Coghlan’s mistake about the amount to be secured by the Bank’s mortgage.
One way or another, Mr Jamieson knowingly misled Mr Coughlan into signing the February agreement, which means that the variation could not have been enforced if it had otherwise sufficed to constitute a contract.
What of the other contested factual issues concerning the conversation?
No doubt Mr Jamieson intimated to Mr Coghlan a distinct preference for substantial vendor finance. Mr Southwell-Keely’s diary note records Mr Coghlan’s recollection that Mr Jamieson “would like” it. He may even have indicated that Pyoanee might find it hard to borrow the balance of the price from another lender promptly. But nothing more definite is proved.
An assertion that Mr Jamieson had disclosed that Pyoanee could not complete without vendor finance was first notified (by an amended statement of claim) less than two months ago, which is a reason for caution before accepting the proposition. Secondly, Mr Coghlan’s hearing difficulties are acute. As a result, he is susceptible to misunderstandings in oral communications. For example, this perplexing exchange took place in his cross-examination:
“On the 18th of February you did not ask Mr Jamieson how much he was borrowing under the first mortgage, did you? -- How much money?
He was borrowing under the first mortgage. You did not ask him that question, did you? –- He wanted to borrow 3507 – 3,507,000.
You did not ask him how much he was borrowing under the first mortgage, did you? --I didn’t ask him, no.
He did not tell you, did he? -- No, he didn’t, I already knew.
You made the assumption that if you were being asked to lend $3.5 million he must be borrowing $3 million under a first mortgage; is that right? -- Sorry, what?
You made an assumption about how much Mr Jamieson was borrowing under the first mortgage; correct? -- 3 million, yes
That was your assumption? -- No, that was what I had been told.”
All considered, I am not persuaded that Mr Jamieson told Mr Coghlan that Pyoanee could not complete the acquisition without vendor finance.
This brings me to the non-disclosure of bankruptcy point.
Despite Mr Jamieson’s evidence to the contrary, I am satisfied that Mr Coghlan had not been informed of the bankruptcy by February. The omission is said to matter on the footing that the silence amounted to misleading conduct which operated to induce the February agreement.
There are two problems with this. First, the circumstances did not require the fact of the matter to be disclosed. Pyoanee was not obliged to act in Mr Coghlan’s interests. Nor did it bear burdens of disclosure akin to those of a fiduciary or of a party required to act with the utmost good faith. Secondly, the omission was immaterial. Long after Mr Coghlan learned of the bankruptcy, he continued to negotiate with Mr Jamieson about vendor finance, personally as well as through lawyers who knew of the bankruptcy. This conduct cannot be reconciled with Mr Coghlan’s claim that he would not have extended finance had he known of the bankruptcy.
What is the significance of the proved facts?
Although it is common ground that the February “agreement” lacked the certainty essential to the making of an enforceable bargain, it is, as I understand it, contended that it nonetheless varied the September contract, corrupting it with the same uncertainty that denies legal efficacy to the variation, thereby denying effect to the contract.
This cannot be. The February agreement failed, both sides now say, because of its uncertainty, which is an initially vitiating circumstance. So, much as Lord Devlin, speaking for the Privy Council, said in United Dominions Corporationv Shoucair[1] of a variation rendered void and of no effect by statute, the “attempt at changing the original contract would have failed altogether and so left it quite untouched”.
[1][1969] 1 AC 340, 347.
Then, I gather, it is said that the parties intended the contract to terminate if the attempt Mr Coghlan and Mr Jamieson made to record the outcome of their discussions on 18 February happened not to constitute an effective variation: in other words, that, viewed objectively, the parties intended to abandon the sale if the document these two non-lawyers signed that day did not operate to vary the contract. Perhaps the case propounded is that the parties manifested an intention to treat the September contract as if it had never been made. Perhaps it is that they intended only to discharge themselves from the future performance of their obligations under it. It does not matter which. For the evidence does not permit either complexion to be placed upon things.
There is no hint of such an intention in the words used in the February document. The conversation which resulted in its execution does not point in that direction either. There is no suggestion, for example, of an exchange along these lines: “If in signing this vendor finance agreement we do not succeed in varying the September contract, we want that contract treated for the future as no longer binding or else as if it had never been made.” The fate of the September contract was not addressed. Nor does the evidence otherwise justify attributing some such intention to either, let alone both, of the men. Mr Coghlan’s solicitors’ letter of 2 April, for example, evidences Mr Coghlan’s wish that the contract proceed to settlement, though without vendor finance in which his security was subordinated to the Bank’s mortgage for $8,500,000.
Given the circumstances known to both sides, it would be peculiar to impute to them an intention to forego the September contract if the February agreement proved not to be binding. Take Pyoanee: from its perspective, abandonment of the contract would not have made commercial sense. The company had spent thousands of dollars in preparing plans and in pursuing a development application; it would scarcely wish to waste the expenditure. So even if the case against Pyoanee is that the parties manifested an intention to treat the contract as if it had never been made if the variation failed – presumably obliging Mr Coghlan to repay the deposit – Pyoanee had an evident, considerable incentive to find other funding.
It cannot be inferred that the parties intended the September contract to be discharged, from its inception or prospectively, if the February attempt at variation failed.
Pyoanee was put to proof on its plea that it is ready, willing and able to complete. It passed the test.
Other impediments to specific performance were suggested: absence of clean hands, unfairness and unconscionable conduct justifying refusal of the equitable remedy, and unconscionable or misleading conduct warranting intervention under the Trade Practices Act 1974. All are founded on the notion that the September contract should not be ordered to be performed because misrepresentations induced the uncertain, ineffective February agreement.
There is, in equity, no good reason to refuse specific performance. Mr Jamieson’s misconduct in inducing Mr Jamieson to sign the February agreement lacks a direct connection with the antecedent contract sought to be enforced.[2]. By the same token, it would not be fair to invoke the Trade Practices Act to deny enforcement. Such a punitive result would be out of proportion to the misconduct and its significance for the parties’ relationship.
[2]cf Meagher, Gummow & Lehane, Equity Doctrines & Remedies, 3rd ed (1992) p 84.
It was also sought to characterize Mr Jamieson’s conduct after 18 February as reprehensible, making it unfair to decree specific performance. Pyoanee, it is said, insisted that it was not obliged to complete without vendor finance, thereby denying Mr Coghlan’s “previous right to terminate on 5 March 2002” and provoking delay. It is doubtful that this defence has been pleaded. Anyhow, Mr Coghlan could not have rescinded on 5 March. He then lacked a certificate of title to deliver at settlement. Moreover, he was willing to negotiate towards vendor finance for weeks after he had senior counsel’s advice on the enforceability of the February agreement. And he knew that he could at any time have given a notice to complete the contract.
Another discretionary bar was raised in address though not pleaded: that it would cause unwarranted hardship to enforce the contract unless Pyoanee paid the current value of the property – said to be $8,250,000 – and interest. Passing mention was made in evidence of the $8,250,000; but, there being no controversial aspect to the figure, without contest. In the circumstances, the absence of a challenge does not mean that the valuation must be taken to be correct. Moreover, Mr Coghlan could have given a notice to complete. And for about four months the delay in settlement has been caused by his unjustifiable refusal to complete rather than through Mr Jamieson’s efforts to obtain vendor finance. In any event, the contract provides for interest at 10% on late payment of monies owing where the delay is “not attributable to the default of the vendor”.
Pyoanee is entitled to specific performance of the September contract. I will hear the parties with respect to the form of order and costs.
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