Combined Civil Engineering Pty Ltd t/as Hoxton Park Sand and Soil v Hoxton Park Sand and Soil Pty Ltd

No judgment structure available for this case.

Local Court of New South Wales

CITATION: Combined Civil Engineering Pty Ltd t/as Hoxton Park Sand and Soil v Hoxton Park Sand and Soil Pty Ltd [2006] NSWLC 35

JURISDICTION: Civil

PARTIES: Combined Civil Engineering Pty Ltd t/as Hoxton Park sand and Soil (plaintiff)
Hoxton Park Sand and Soil Pty Ltd (defendant)
Combined Civil Engineering Pty Ltd t/as Hoxton Park Sand and Soil (cross defendant)

FILE NUMBER: 7813/05

PLACE OF HEARING: Downing centre Local Court

DATE OF DECISION:
09/13/2006

MAGISTRATE: Magsitrate B A Lulham

CATCHWORDS: Contract - Notice to complete - Forfeit of deposit - Repudiation - Uncertainty - Mistake

LEGISLATION CITED:

CASES CITED: Upper County District Council v Australian Chilling and Frezing Co. (1968) 118 CLR 429
Axelson v O'Brien (1949) 80 CLR 219
Bridge Wholesale Acceptance Corp (Australia) Ltd v Burnard (1992) 27 NSWLR 415
ANZ Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695
Hall v Busst (1960) 104 CLR 206
Trustees Executors & Agency Co. Ltd v Peters [1960] 102CLR537
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Pacific Carriers Ltd v BNP Pariba (2004) 78 ALR P1048
Mehmet v Benson [1965] 113 CLR 295
McNally v Waitzer (1981) 1 NSWLR 294

REPRESENTATION:
Mr Ward-Harvey - Counsel
Paul Ward-Harvey & Co. - Solicitors
Mr A J Tudehope - Counsel
Paul C Fabian & Co - Solicitors

ORDERS: On the plaintiff's claim there will be judgment for the defendant. On the defendant's Cross Claim there will be judgment in favour of 2J Pty Ltd in the sum of $30,212.80.The plaintiff will be ordered to pay interest on the judgment debt from 1 December 2003 to date to be calculated by the Registrar. The plaintiff is ordered to pay the costs and disbursements of the defendant in the action. The costs and disdursements will be as agreed between the parties. In default of agreement within 28 days the costs are to be assessed under the Legal Profession Act. The name of the defendant is changed to 2J Pty Ltd.

Reasons for Decision

1 The plaintiff Combined Civil Engineering Pty Ltd (hereinafter called “the plaintiff” or “Combined Engineering”) by Amended Statement of Claim sought to recover from the defendant Hoxton Park Sand & Soil Pty Ltd the sum of $16,000 being the deposit paid by the defendant as purchaser to the plaintiff as vendor in relation to the sale of the sand and gravel business operated by the vendor at the Hoxton Park Airport. The names of the parties is somewhat complicated by the fact that the vendor intended to sell the business known as Hoxton Park Sand & Soil. During the negotiations the proposed purchaser registered a company in the name of Hoxton Park Sand & Soil Pty Ltd and the purchase proceeded with the purchaser as Hoxton Park Sand & Soil Pty Ltd. To avoid confusion I shall refer to defendant either as ‘defendant’ or ‘purchaser’.

2 The purchaser paid a deposit of $16,000. The vendor’s case was that an agreement was entered into and that subsequently it issued a Notice to Complete and when such Notice to Complete was not complied with terminated the agreement. The vendor’s solicitor was holding and still holds the $16,000 in his trust account. The plaintiff claimed the defendant had forfeited the deposit and sought judgment for that amount.

3 The defendant’s case was either that there was no binding contract and therefore the purchaser was entitled to a refund of the deposit, or alternatively that the court would find that a binding legal agreement was entered into on a different basis to that alleged by the plaintiff. The defendant further alleged that the plaintiff was not itself ready, willing and able to complete the sale when it issued the Notice to Complete and when it terminated the contract, and that it was therefore not entitled to terminate the contract. The defendant argued that the termination amounted to a repudiation and sought a refund of the deposit of $16,000 plus damages being the expenses it incurred in connection with the purchase in the sum of $15,372.80.

4 I found this to be a very sad and disappointing case. I regret that it is necessary for me to make comments critical of the solicitors who acted for the plaintiff and the defendant in the conveyancing transaction. Messrs Paul Ward-Harvey & Co. acted for the vendor and initially Mortimer & Associates for the defendant. In my view each firm displayed a lack of attention to detail which largely contributed to the confusion when they purported to exchange contracts on behalf of their clients. Having said that, I do not propose to make further comments critical of the solicitors unless it is absolutely necessary to do so.

5 The proceedings were heard over two days. At the end of the first day I indicated to the parties’ representatives that it seemed to me that the matter raised interesting questions as to law, and I asked the parties to prepare outline submissions on the law. I received helpful submissions from Mr Ward-Harvey and Mr Tudehope, although neither referred to any authorities. Mr Ward-Harvey attached a helpful article from the Law Society Journal.

6 I was of the view that the determination of this matter would require me to have regard to the principles in relation to the Law of Contract usually gathered together under the heading of uncertainty and also principles relating to mistake. I set out the following principles from Cheshire & Fifoot Law of Contract (Seventh Australian Edition p210) which I believe will be applicable.

See

Upper County District Council v Australian Chilling & Freezing Co.

The question of certainty is complicated because a contract can be uncertain in various ways: a term or combination of terms may be vague, ambiguous or meaningless; or the agreement may be incomplete, in the sense of leaving something to be agreed later, either deliberately or inadvertently. Further, uncertainty may arise in such a way that it is possible to argue on the basis of the principles of mistake. (3)

Axelsen v O’Brien

(1949) 80 CLR 219 AT 226 (Dixon J))

Bridge Wholesale Acceptance Corp (Australia) Ltd v Burnard

(1992) 27 NSWLR 415

ANZ Banking Group Ltd v Frost Holdings Pty Ltd

[1989] VR 695.

Need for certainty. The justifications for the requirement of certainty are clear enough. If parties have negotiated and have not reached final agreement or the supposed agreement which they have reached is so unclear as to lack a sensible meaning, then it is legitimate to say that the process of formation of a contract has not taken place. (8) Even if this hurdle can be cleared, it may be difficult to answer the question: ‘has there been a breach?’ if there is no clarity or finality of agreement. Finally, certainty is required for a court to be in a position to grant an appropriate remedy. Damages cannot be assessed or specific performance cannot be ordered if it is not clear what remedial action is called for. (9)

Hall v Busst

(1960) 104 CLR 206 AT 222 (Fullagar J)

Upper Hunter County District Council v Australian Chilling & Freezing Co.

(1968) 118 CLR 429 AT 436-7.

7 The learned authors indicate that the courts will normally try to uphold contracts and at page 213 state as follows;

Trustees Executors & Agency Co. Ltd v Peters

They go on to say;

‘If a contract contains contradictory provisions, the courts’ task is, so far as possible, to resolve the conflict by looking at the contract as a whole.

The authors emphasise that the test to be applied for interpreting and interpolating conditions so as to give effect to the parties apparent intentions is the objective test.

8 In relation to the principles relating to mistake, it appeared to me that this case might fall within that category of case where, ‘despite appearances there is no genuine agreement, since there is no corresponding offer and acceptance’ (Cheshire & Fifoot 7th Edition p495). The learned authors set out the test to be applied as follows (p497);

‘Where each party is mistaken about the other’s intention, though neither realises that the other is so mistaken, the court’s task is to ascertain what a reasonable observer would have concluded was the true bargain. The court must determine what Austin called ‘the sense of the promise’ So long as some intention can be ascertained (that is, the agreement is not void for uncertainty) then the contract is binding in that sense.’

9 Those principles have been recently re-affirmed by the decision of the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 approving what it had stated in Pacific Carriers Ltd v BNP Paribas (2004) 78 ALR P1048, that the principle of objectivity to be applied in determining the rights and liabilities of parties to a contract involves the following;

1. The subjective beliefs and understandings of the parties do not govern their contractual relations.

2. The words of the contract were to be construed by reference to what each party by words and conduct would have lead a reasonable person to believe.

3. The meaning of a contract is to be determined by what a reasonable person would understand them to mean, requiring, normally, consideration of:

(a) the text of the contract;

(b) the surrounding circumstances; and

(c) the purpose and object of the transaction.

10 The plaintiff relied on an affidavit of its Director, Paul Trajkovski dated 16 February 2006 (Exh.1)

11 The defendant relied on the following statements:

(Exh 3) Jack Nassif filed 23 March 2006

(Exh 4) Statement of Jack Nassif dated 4 May 2006. This statement helpfully attached correspondence between the solicitors and other relevant bodies paginated 1 to 113.

(Exh 5) Bundle of documents evidencing expenses allegedly incurred by defendant in proposed purchase.

12 I do not propose to go through the evidence of each of the witnesses in great detail. In my view it is a matter which will largely be decided on the documents.

13 However I intend to make these preliminary comments in relation to questions of credit. I much preferred the evidence of Jack Nassif (the effective party for the purchaser) to the evidence of Mr Trajkovski the Director of the vendor. I was satisfied that Mr Nassif had a much better recollection as to what had occurred and as to what was said and as to dates when events occurred. There was no doubt that there were discussions at a meeting attended by Mr Trajkovski and his associate Gary Fulton on the part of the vendor, and by John Ashkar and Jack Nassif on behalf of the purchaser. It was at that meeting that two written documents being contracts for the sale of the business were executed by Mr Trajkovski for the vendor and Mr Ashkar for the defendant. I am satisfied that the agreements were signed at a meeting at the plaintiff’s premises on or about 6 or 7 September. In his statement Mr Trajkovski stated that the agreements were signed by the various parties on or about 8 October. I am satisfied he was wrong in relation to that assertion. He corrected his statement when he gave evidence, but his statement was prepared on the basis that the documents were signed on or about that date. The fact that he got the date on which the documents were signed wrong, in my view reflected considerably on the accuracy of his recollection regarding other aspects of the matter.

14 During the negotiations Mr Trajkovski wrote to the proprietor of the Hoxton Park Airport (sometimes referred to as ‘the Bankstown Airport Limited’) advising that his company had registered Hoxton Park Sand & Soil Pty Ltd and that they wished the existing lease to be changed to that name. Mr Trajkovski agreed in evidence that such statement was wrong and that his company had not registered that company, but in fact it had been done by the purchaser. In the letter he said that his company had registered the company as per their accountant’s request. That also was wrong.

15 Mr Nassif gave evidence that it was Paul Trajkovski who suggested to him that he, as purchaser, should register the company Hoxton Park Sand & Soil Pty Ltd. Mr Trajkovski denied that he had made that suggestion. I had no doubt at all that Mr Trajkovski did put forward that proposal. I found his denial that he did so untrue.

16 Mr Nassif gave evidence that he registered the company Hoxton Park Sand & Soil Pty Ltd with the knowledge and consent of Mr Trajkovski. Mr Trajkovski denied that was so. It was put to Mr Nassif on several occasions that he had caused the company to be incorporated without the knowledge or consent of Mr Trajkovski. Mr Nassif denied that was the case.

17 It was pointed out by me to Mr Trajkovski’s solicitor that in a letter from Mr Trajkovski to Mr Nassif dated 24 September 2003 (Exh.4 Annexure D) Mr Trajkovski on behalf of Combined Civil Engineering Pty Ltd had written to Jack Nassif and stated in part the following;

‘ Please advise the directors of Hoxton Park Sand & Soil Pty Ltd ACN No. 106346249 to change the company name within 48 hours as this was registered with written consent.’

18 The matter was raised after Mr Trajkovski had given evidence. Through his solicitor Mr Trajkovski indicated that the letter to Mr Nassif included a typographical error and that the word ‘with’ should have been ‘without’. I very much preferred the evidence of Mr Nassif on that matter and generally when there was any dispute between his evidence and Mr Trajkovski.

19 The plaintiff’s solicitor Mr Ward-Harvey prepared a Contract for Sale of Business by 1 September. He forwarded it to Mr Fulton on 1 September (Exh 4, p119). I am satisfied a meeting was then held at the plaintiff’s premises on either 6 or 7 September between the vendor’s and purchasers’ representatives.

20 I prefer the evidence of Mr Nassif and Mr Ashkar as to what occurred at the meeting. I am satisfied that Mr Trajkovski produced two documents which appeared to be agreements for the sale of the business. I am satisfied that a conversation took place to the following effect as alleged by Mr Nassif (see Exh4 para 18);

Paul Trajkovski: “I’ve got the contract here, what do you want to do?”

Jack Nassif: “As a sign of good faith will sign it and you sign it, but it is not to be exchanged. We can then take the contracts to our solicitors and do the exchange after the lease is sorted out. I want a proper lease and I want the option exercised.”

Paul Trajkovski: “Don’t worry I’ll send a letter to the landlord exercising the option.”

Jack Nassif: “I’ll get my solicitor to contact the landlord’s solicitors as well,”

21 I am satisfied that Mr Ashkar then signed each of the documents and initialled the pages of both documents on behalf of the purchaser and Mr Trajkovski signed the front page of both documents and initialled the pages on behalf of the vendor. Each then took a copy of the signed agreement to their solicitors.

22 Evidence was given by both John Ashkar and Jack Nassif that they checked quickly through the agreements which were signed as purchaser and Paul Trajkovski gave similar evidence as to signing the document as vendor. I am satisfied that the parties believed that they were signing documents which were an original and a counterpart copy and which were in the same form. I am further satisfied that when each of the parties returned a copy of the document to the respective solicitors, that the solicitors believed the two documents were the same. That was not the position.

23 The document retained by the purchaser was in the form of the agreement marked Exhibit A to the affidavit of John Ashkar Exhibit 2 (generally hereinafter referred to as ‘purchaser’s copy of contract’). When signed the document was in the following form;

1. The purchaser’s name was left blank.

2. The name of the purchaser’s solicitor was left blank.

3. Opposite the words ‘completion date’ was written the letters and words ‘42th’.

The agreement contained the following special condition 2;

‘Completion of this sale is not subject to prior consent or of assignment by the lessor of the lease of the property, but the vendor and purchaser agree to take all reasonable steps to effect the assignment of the lease within three months of completion of this contract.’

24 The contract retained by the purchasers on the page headed ‘Plant and Equipment’ had the following alterations;

1. Under ‘Kitchen’ the words ‘1 kettle’ were added.

2. There was reference at number 5 to a ‘tipper’ and the following words appeared;

5. Tipper

Izuzu 6 ton Reg No: SNW 221 Vin JAANPR GGLN 7100160

3. After number 6 Front Loader the following words were handwritten;

Engine No. D201524

4. Under number 7 Forklift the following words were included;

SN 3FGC 30- 11554 Engine No. 5P0010018

5. There was an additional number 9 as follows;

9 Tipper

1991 Mitsubishi Tipper Reg No. QIC-918

Model CAN-91A

Engine No. 4D31889999

Vin No. JMFE4B21DMJ050127

25 My understanding of the evidence was that the form of the contract annexed to Mr Ashkar’s statement as Annexure A was in the form as it was signed by the parties on the day in September.

26 The other form of contract was annexed as Annexure B to Mr Ashkar’s statement (Exh.2) (generally hereinafter referred to as the vendor’s copy of the contract).

27 I am satisfied on the evidence that the copy of the Contract of Sale of Business retained by the vendor when the agreements were signed in September contained special condition 2 in the following form;

‘Completion of this sale is not subject to prior consent of or assignment by the lessor of the lease of the property, but the vendor and purchaser agree;

1. To take all reasonable steps to effect the assignment of and consent to the assignment of the lease, and

within three months of completion of this contract. Should the assignment consent or exercise the option not take place within three months on completion of this contract, then the vendor shall repay to the purchaser all monies paid to the vendor and the purchaser shall assign the business to the vendor.’

Clearly there was a considerable difference between the two special conditions 2.

28 Subsequently the solicitors purported to formally exchange contracts on 8 October 2003. I am not able to determine when the amendments to the plant and equipment was made, but at least by the time that the agreements were exchanged the copy Annexure B retained by the vendor was different to that held by the purchasers in the following respects;

2. Kitchen

The words ‘1 kettle’ were not included.

5. Tipper

The word ‘tipper’ and all words appearing thereafter were struck through.

6. Front Loader

There was no engine number set out.

7. Forklift

The following additional words appeared ‘engine 5P0010028’.

(v) The following additional clauses appeared;

5A: Mitsu Canter 1992

Vin JMFE4B210MJ050127

Engine 4D31889999

5B: Isuzu Tipper

Vin JAANPR66LN7100160

Engine 4HF1140935

29 I am satisfied that by Monday 8 September Ward-Harvey & Co. solicitors held the agreement (Annexure B to Exh.2) retained by the vendor and Mr Chouman of Mortimer & Co acting for the purchaser held the contract retained by the purchaser. There were further negotiations between the parties particularly as to whether the lease was to be assigned before or after completion of the sale. On 10 September Mr Chouman of Mortimer & Associates wrote to Ward-Harvey & Co indicating that the purchasers were prepared to exchange contracts and pay the 10% deposit, subject to the vendor exercising the option to renew the lease for a further four years and that the sublessor consented to assign the existing lease to the purchaser. He indicated special condition 2 was to be deleted.

30 I am satisfied on the evidence of Jack Nassif that at the suggestion of Paul Trajkovski and with his consent, he arranged for the incorporation on or about 16 September 2003 of Hoxton Park Sand & Soil Pty Ltd ACN 106346249.

31 I am satisfied that on or about 19 September 2003 Mr Trajkovski wrote to the Bankstown Airport Limited to the following effect;

‘Attn: Andrew Cook

Re: Notice to renew lease (Take up option 4 years) site 315 Hoxton Park Airport

In reference to the above we advise you that we wish to exercise our 4 year option as per clause 24 in our current lease.

Please be advised that our lease is currently held under Combined Civil Engineering Pty Ltd. As you are aware Combined Civil Engineering Pty Ltd is trading as Hoxton Park Sand and Soil. Business registration number BN 97943987 (see attached Certificate).

We have now registered Hoxton Park Sand and Soil Pty Ltd with the ASIC Acn No 106 346 249 as a separate entity as per our accountant’s request.

We therefore seek approval that the new lease (4 year option) be registered in the new Company name of HOXTON PARK SAND AND SOIL PTY LTD. If further information is required please contact Paul on 0412080879.’

32 In evidence Mr Trajkovski admitted in cross examination, somewhat reluctantly, that the information contained in that letter was untrue, in that it was not he who had registered the company, but the purchaser.

33 Subsequently the vendor obtained a letter from Bankstown Airport Limited forwarded by fax on 17 October in the following form;

‘I write further to your fax dated 9th of October in respect of the change of name to Hoxton Park Sand and Soil Pty Ltd. I can confirm the Hoxton Park Airport Limited consents to this change subject to the new director(s) acting as guarantors for all rent, outgoings and charges.’

34 Subsequently the vendor’s solicitor relied on that latter of 17 October as evidence of the consent by the Bankstown Airport Limited to the assignment of the lease. He sought to rely on the letter for that purpose in his submissions. I reject the proposition and the submission. The letter by Mr Trajkovski was a request (based on untruths) for the name of the lessee to be changed from Combined Civil Engineering Pty Ltd to Hoxton Park Sand and Soil Pty Ltd on the basis that the directors and shareholders of the two companies would be the same. It was on that basis that Bankstown Airport dealt with the application. It was devious and dishonest for the plaintiff to suggest the letter from Bankstown Airport was evidence of consent to the assignment of the lease.

35 Mr Nassif stated (Exh.3, para 30) that on or about 26 September 2003 he had a conversation with Mr Trajkovski to the following effect;

Mr Nassif: “Look Paul I’m not going to buy this business unless I get a proper lease.”

Mr Trajkovski: “What if I give you a personal guarantee that you will have the lease within three months?”

Mr Nassif: “That will okay with me but I want to talk to my solicitors about it to see it is alright to do it that way.”

Mr Trajkovski: “Can you settle within seven days?”

Mr Nassif: “I can settle within seven days.”

36 He said he told his solicitor Mr Chouman of that conversation and instructed him to get a copy of the personal guarantee. Such conversation is supported by the letter forwarded by Mr Chouman to the vendor’s solicitors Ward-Harvey & Co on 26 September 2003 (Exh.4, p106).

37 Mr Nassif further stated in his statement (Exh.3 para 32) as follows;

‘On or about 8th October 2003 I instructed Mr Chouman to offer to the vendor that contracts could be exchanged on the basis that the vendor would prior to settlement provide confirmation that the lessor will grant a lease to Hoxton Park Sand and Soil Pty Ltd.’

38 On 8 October 2003 Mr Chouman faxed a letter to the vendor’s solicitors Paul Ward-Harvey & Co (I should indicate that the determination of this matter has been made far more difficult by the fact that Mr Chouman was apparently forwarding letters on his fax with the fax recording the wrong date. This fax was received by Messrs Ward-Harvey with a date of 25 September 2003. It was not in dispute that the fax was sent and received on 8 October. The same problem arose on several occasions. When the date the documents were sent was obviously a critical matter, it seems highly unusual that the wrong dates could continue to be used. Such errors added significantly to the difficulties in understanding the transaction). The letter was in the following form (Exh.4, p100);

‘Re: Nassif proposed purchase from Hoxton Park Sand and Soil

The parties have resumed negotiations and now agree to exchange contracts on the basis that your client will provide our client prior to settlement with confirmation that the sublessor will grant the lease in the name of Hoxton Park Sand and Soil Pty Ltd.

On that basis we authorise you to bank the deposit and complete exchange of contracts today between the parties with Hoxton Park Sand and Soil as the purchaser.’

Such letter is the crucial evidence in this matter.

39 Mr Ward-Harvey replied to that letter with a handwritten fax in the following form (Exh.4, p99);

‘We refer to your fax today and confirm having exchanged contracts today and deposited cheque for $16,000 into our trust account in accordance with that fax. Copy front page of contract herewith.’

40 It is clear that what the solicitors purported to do was to legally exchange the contract which each of the solicitors was holding, each of which was signed by both parties, so as to bind the parties to the contract. They did not physically exchange contracts, but treated the contracts as exchanged so as to bind the parties.

41 The photostat copy of the front page of the contract forwarded by Mr Ward-Harvey made the following alterations to the copy held by Mr Chouman;

1. The purchaser was shown as Hoxton Park Sand and Soil Pty Ltd.

2. The completion date was altered by striking through the entry ‘42th’ and substituting ‘7th’.

3. The document was dated 8th October 2003.

4. The following words were added under the name ‘purchaser’ on the front page;

‘For and on behalf of Hoxton Park Sand and Soil P/L.’

42 There was no evidence of any exchange of correspondence or conversations between the solicitors which authorised the change of the completion date from 42 days to 7 days. Mr Nassif in his statement said he never authorised Mr Chouman to make that alteration, although he said he did tell Mr Chouman that he would be able to settle within 7 days provided the vendor provided the confirmation that the lease would be provided to the purchaser.

43 Clearly the solicitors purported to exchange contracts so as to bind their clients on 8 October 2003. I am satisfied that the solicitors, if properly instructed, could agree on behalf of their respective clients that contracts would be deemed to be exchanged, even though each retained the executed copy in each possession. However, although that may have been the intention of the solicitors, it may be that their actions would not result in a binding agreement if the contracts held by each of them contained different fundamental terms and conditions, so that on an objective test it could not be said that the parties were not ad idem at the time of exchange. Mr Tudehope for the defendant made that submission. He submitted that there were three important differences;

1. The completion date as recorded on the contract retained by the purchaser required a completion date 42 days after exchange, whereas that retained by the vendor had been altered to 7 days.

I am of the view that this difference would have been crucial except that on 8 October 2003 Mr Ward-Harvey forwarded a copy of the front page of the vendor’s contract indicating the alteration from 42 days to 7 days for completion. Whilst I have considerable doubt that such alteration was agreed to prior to exchange by the purchaser, the evidence indicates that when Mr Chouman received the copy of the front page, he raised the matter with Mr Nassif and did not make any objections to the vendor’s solicitor. I am of the view that the non-action on the part of the vendor and his solicitors amounted to an acceptance of the alteration to 7 days.

2. The second basis on which it was submitted that a binding contract was not entered into was based on the difference in the special condition 2 in each contract. As previously pointed out the contract retained by the vendor was in the following form;

‘Completion of this sale is not subject to prior consent of or assignment by the lessor of the lease of the property, but the vendor and purchaser agree;

1. To take all reasonable steps to effect the assignment of and consent to the assignment of the lease, and

within three months of completion of this contract. Should the assignment consent or exercise the option not take place within three months on completion of this contract, then the vendor shall repay to the purchaser all monies paid to the vendor and the purchaser shall assign the business to the vendor.’

The contract retained by the purchaser had the following special condition 2;

‘Completion of this sale is not subject to prior consent or of assignment by the lessor of the lease of the property, but the vendor and purchaser agree to take all reasonable steps to effect the assignment of the lease within three months of completion of this contract.’

3. The third basis on which it was submitted that the parties had not reached agreement was on the basis that the contract retained by the purchaser made reference to an Izuzu 6 ton truck, whereas it was submitted that the contract retained by the vendor did not make reference to that truck. I am satisfied such submission is factually wrong and I am satisfied that in the contract retained by the vendor the same Izuzu truck is included at 5B.

44 I indicated a preliminary view that the parties had not in fact entered into a binding legal agreement because of the differences in special condition 2. However, that preliminary view has to be considered in conjunction with the letter which the purchasers’ solicitors forwarded on 8 October 2003. I set out the relevant portion again;

‘The parties have resumed negotiations and now agree to exchange contracts on the basis that your client will provide our client, prior to settlement, with confirmation that the sublessor will grant the lease in the name of Hoxton Park Sand and Soil Pty Ltd.’

45 That letter obviously was most important in objectively determining what was the agreement reached between the parties. The purchaser’s solicitors specifically provided that contracts of sale were to be exchanged on the basis of that letter. Contracts were exchanged following receipt of the letter. That condition had to form part of the agreement and in determining the basis of the agreement, had to be given great significance and weight, because it was the very basis upon which the purchaser was prepared to exchange contracts. The provision in the letter was contrary to and at odds with each of the two versions of special condition 2 in the two agreements. The purchaser’s solicitor had previously asked for condition 2 to be deleted.

46 Mr Ward-Harvey in his written submissions submitted that a contract came into existence on 8 October including the condition contained in the letter from the purchaser’s solicitors dated 8 October 2003. He made no submissions as to how the condition contained in the letter could apply as well as special conditions 2. Indeed in his submissions he sought to rely on the version of special condition 2 in the contract retained by the vendor. I cannot understand how it could be submitted that the purchaser could be bound by that clause, when it was not included in the contract retained by him and held by his solicitor.

47 I should add and emphasise that it was not disputed, that during the whole of the negotiations and correspondence following exchange of contracts, neither of the solicitors were aware of the difference in special condition 2 in each contract. It seems extraordinary, but that was so.

48 Alternatively Mr Ward-Harvey submitted that if there was a condition imposed by the purchaser’s letter of 8 October requiring consent to be obtained, then the plaintiff had complied with such requirement by obtaining the letter dated 17 October from the Bankstown Airport. I reject that submission. The letter from Bankstown Airport was obtained as a result of the letter written by Mr Trajkovski asking that the name on the lease be altered to the name of Hoxton Park Sand and Gravel Pty Ltd. The evidence indicated clearly that the sublessor only consented to the change of the name and did not by that letter, consent to the assignment of the lease to a new entity with different directors and/or owners.

49 I am conscious of the principles which I set out in paragraphs 6,7,8,9 and 10 as to the extent which the authorities indicate the court will generally go to try to find that there was an agreement between the parties based on the objective test.

50 Applying the objective test I am satisfied that contracts were exchanged on the basis of the letter of 8 October and I am satisfied that the condition in the letter overrode the provisions of either of the special conditions 2. Mr Tudehope for the purchaser made oral submissions to that effect to me. Such construction accords with the intention of the purchaser set out in paragraph 36 of his statement.

51 The condition set out by the purchaser’s solicitor in the letter of 8 October was inelegantly worded and vague, and I gave considerable thought to whether such clause was so vague and uncertain that effect could not be given to it. If that clause was not given effect, then, it being the basis on which contracts were exchanged, in my view the contract failed on the basis of uncertainty. If I made that finding, then it would follow that the parties not having reached agreement, the purchaser would be entitled to a refund of the deposit, but would not be entitled to further damages. I raised this problem with Mr Ward-Harvey and Mr Tudehope. Neither made submissions that the clause should be held to be so vague and uncertain that a court would not grant specific performance of it. Mr Tudehope submitted otherwise. Again using the objective test, I am satisfied that the clause should be given effect and should be read as to provide;

‘The vendor will provide to the purchaser, prior to settlement, confirmation that the sublessor will assign the existing lease to the purchaser in the name of Hoxton Park Sand and Soil Pty Ltd upon reasonable terms and conditions.

52 That interpretation and construction accords with the intention of Mr Nassif whom I am satisfied on several occasions told Mr Trajkovski that the most important thing he wanted was a proper lease.

PERIOD BETWEEN EXCHANGE OF CONTRACTS AND ISSUE OF NOTICE TO COMPLETE

53 Following exchange a problem arose when the cheque provided by the purchaser was not met by the bank. I was satisfied that was as a result of a misunderstanding by the Mr Nassif, and the dishonoured cheque was replaced by the purchaser with a bank cheque.

54 The purchasers’ solicitors forwarded requisitions and a form of statutory declaration. On 11 October 2003 Ward-Harvey & Co wrote to the purchasers’ solicitors advising in part (Exh.4, p93);

‘With respect, we are not providing any updated disclosure statement to you as your dealings with the Airport with regard to the new lease will be exclusively between your client and the Airport.’

I find that statement surprising and clearly contrary to the vendor’s obligation under the clause included in the letter of 8 October, being the basis on which contracts were exchanged. It would seem even at that early stage the vendor’s solicitor was giving no significance or effect to the Condition contained in the letter of 8 October.

55 The vendor made replies to requisitions on title. I am satisfied the replies were unsatisfactory. Very quickly a problem arose as to the vendor proving ownership of the items of plant included in the schedule. It transpired that the vendor did not own any of the equipment. I note that Mr Trajkovski signed a statutory declaration on 13 October 2003 declaring that there was no outstanding rent arrears or unpaid outgoings under the lease. That statement was incorrect on the evidence indicated that at that stage there was at least $3,000 outstanding in rental under the lease.

56 On 15 October Mortimer & Associates wrote to Ward-Harvey indicating that they were still awaiting confirmation to their satisfaction of the lessor’s consent to the transfer of the lease to Hoxton Park Sand and Soil Pty Ltd. There was then correspondence between the solicitors with each threatening to issue a Notice to Complete. The parties were obviously in dispute. That was not surprising. The evidence of Mr Trajkovski in chief was that he believed that contracts of sale were exchanged at the time that the parties signed the agreement. Referring to the meeting on 6 or 7 September he gave evidence as follows;

“So, as I see it, we sign the contracts he gives me the deposit, deal done.”

He gave further evidence (T10/05/06, p7,L35);

He said (T10/05/06, p10,L45);

“See when I wrote the special condition of the contract of sale that was very clear to me that all we had to do was help them to get the lease, not guarantee it.”

57 Moreover, Mr Trajkovski gave evidence to the effect that he was not aware of the condition contained in the letter of 8 October when contracts were exchanged. The following evidence was given (T10/05/06, p41,L20);

A. “No. We didn’t have to. Again we go back to the clause in the contract.”

58 It was clear that when referring to the clause he was referring to clause 2. When asked whether his solicitor had brought the special condition contained in the letter of 8 October to his attention, he replied (T10/05/06, p42,L15);

A. “What was the need of that it wasn’t part of the deal.”

Q. “Did he bring it to your attention”.

A. “I don’t recall seeing it.”

59 Clearly Mr Ward-Harvey exchanged contracts having received the letter containing that condition. It appears to me likely that Mr Ward-Harvey did raise the matter with Mr Trajkovski, who does not recall it, and it is clear that Mr Trajkovski did not give the matter the attention it deserved and perhaps did not appreciate the significance of the letter and the special condition. It is for that reason that I find it unremarkable that the parties were soon in dispute with the vendor believing that he was not required to do anything at all in relation to the lease, and the purchaser believing, in my view correctly, that the matter could not be settled until the vendor had provided confirmation of the assignment of the lease.

60 On 21 October 2003 Paul Ward-Harvey & Co served a Notice to Complete on Mortimer & Co. The Notice to Complete was in the following form;

‘NOTICE TO COMPLETE

and MORTIMER & ASSOCIATES, Suite 5, 1st Floor, 183 Street, Lakemba

(Purchaser’s Solicitors)

Paul Ward-Harvey, as solicitor for COMBINED CIVIL ENGINEERING PTY LIMITED ACN 078 763 541 (“the vendor”) gives you notice that:

1. The vendor is ready and willing to complete the Contract for the sale dated 8th October, 2003 of the business Hoxton Park Sand & Soil.

2. The vendor requires you to c9omplete the purchase and to pay the balance of purchase money on or before 3.00pm on Wednesday, October, 2003 and in this respect time is of the essence of the Contract.

3. The vendor appoints 3.00pm on Wednesday, 29th October, at Suite 3, Level 12, 300 George Street, Sydney as the time and place for completion.

4. If you fail to complete this Contract as required by this Notice the vendor will be entitled to terminate the Contract and retain the deposit paid herein.

Paul Ward-Harvey

Solicitors for the vendor’

61 Significantly in paragraph 2 the Notice to Complete fails to indicate a date although a date is inserted in paragraph 3. Also significantly the vendor states that it is ready, willing and able to complete the Contract for Sale as at 21 October 2003. On 24 October the purchasers ceased to instruct Mortimer & Associates and instructed Beilby Poulden Costello Solicitors to act on its behalf.

62 I have made comments critical of the actions of the solicitors who acted in this matter. I made clear that I was referring to Mr Chouman of Mortimer & Associates and Mr Ward-Harvey. I think it appropriate that I indicate that I could find no basis at all to be in any way critical of the work done by the firm Beilby Poulden Costello on behalf of the purchasers. They faxed Ward-Harvey & Co on 24 October (Exh.4, p70) setting out the need for the confirmation of the assignment of the lease and proof of title to the plant.

63 Beilby Poulden Costello faxed Ward-Harvey & Co on 27 October 2003 (Exh.4, p68) advising that their contact with Mr Andrew Cook of the Bankstown Airport Limited indicated that so far as the sublessor was concerned, they had not even as at that stage received an application for the assignment of the lease. Mr Cook confirmed that the only application was an application for the change of the name of the tenant on the basis that no new third parties were involved. That evidence was not challenged or contradicted. I found (paras 30 to 34) that the letter from the Bankstown Airport dated 19 October was not a consent to the assignment of the lease.

64 Between 24 October and 30 October Beilby Poulden Costello had been in contact with the sublessor, Bankstown Airport and with their solicitors. They obtained the requirements of the sublessor for an assignment of the lease and with great expedition and competence arranged for documents to be prepared by the solicitors for the sublessor. The purchaser paid an amount of $1,650 in payment of the fees for the solicitors for the sublessor who wrote several long and detailed letters to Messrs Paul Ward-Harvey & Co.

65 From the time of exchange on 8 October problems had arisen in relation to the ownership of the four plant items included in the sale. They were not registered in the name of the vendor and I am satisfied that the evidence in relation to the reported ownership was unsatisfactory. I am satisfied the replies to the requisitions were unsatisfactory. I am satisfied that on 13 October Mr Trajkovski signed a statutory declaration indicating there were no outstanding rent arrears or unpaid on-goings under the lease. I am satisfied that was not correct at the time the statutory declaration was signed.

66 The Notice to Complete issued on 21 October by the vendor required settlement, it would appear, at 3pm on 29 October.

67 On 28 October 2003 Paul Ward-Harvey & Co wrote to Beilby Poulden Costello in the following form;

‘We refer to your facsimile of the 24th instant and your telephone message this morning in which you requested extension to the Notice to Complete served herein.

We note the contents of your letter which are made without considering the special conditions of the contract between the parties.

Notwithstanding our client is prepared to extend the Notice to Complete for an extra seven days to 3pm Wednesday, 5th November 2003 upon the following conditions:

1. That your client refrain from challenging the validity of the Notice to Complete and this extension thereof.

2. That your client pay into your trust account the balance of the purchase monies by 3pm tomorrow afternoon, Wednesday instant and you confirm such payment to us immediately after receipt. Such monies are to be paid over to the vendor in accordance with the terms of the contract or upon expiration of this extended Notice to Complete.

3. Prior to next Wednesday 5th November 2003 your client is to take such steps as he considers appropriate endeavouring to secure such lease from the Airport Corporation as that corporation is prepared to grant to him.

4. Our client will provide such consent to the Airport Corporation as may be appropriate to enable your client to seek consent of the corporation, but without prejudice to the extension of the lease which has already been granted by the corporation to your client.

We wish to make it clear that our client maintains that it has complied with all of the conditions required of it by the Contract for Sale of Business.’

68 Beilby Poulden Costello wrote two letters to Paul Ward-Harvey on 29 October 2003. The first in time (Exh.4 p38) set out reasons as to why the purchaser contended that the Notice to Complete was invalid.

69 The second letter (Exh.4 p38) indicated that the purchaser was not prepared to agree to the terms upon which the vendor indicated that it was prepared to extend the time for completion. Such letter (correctly in my view) pointed out that the conditions proposed by the vendor were unreasonable and impossible to be met. Following that exchange of letters the parties continued to work towards the settlement of the matter.

70 On 30 October 2003 the purchasers’ solicitors wrote to Beilby Poulden Costello as follows;

‘We refer to your recent correspondence and note that your client has not complied with the requirements of the Notice to Complete. Our client reserves its rights in regard thereto and reserves the right to respond at a later time to your correspondence of the 29th of October 2003 alleging the Notice to Complete to be defective.’

71 On 6 November 2003 Paul Ward-Harvey & Co wrote to Beilby Poulden Costello as follows (Exh.4 p18);

‘We have received instructions to give notice that unless your client pays the balance monies due pursuant to the contract between the parties herein by 5pm today, our client proposes terminating the contract and relying upon the terms of the contract to recover damages suffered by it as a result of your client’s breach and other activities.’

72 Beilby Poulden Costello replied (Exh.4 p17A) pointing out that their client could not comply with the requirement set out in the vendor’s solicitors letter, and quite properly set out outstanding matters in relation to the rental, the guarantee and rental security bond and other matters which clearly the vendor had not attended to. It again raised the problems in relation to the plant and the failure of the vendor or his solicitor to provide evidence of title. The letter indicated that settlement may be able to take place the following week.

73 On 8 November Beilby Poulden Costello were able to obtain documents in relation to the transfer at the assignment of the lease and had arranged for them to be executed by the purchaser. The letter from the sublessor’s solicitor stated;

“Please also note that HPAL shall not be taken to have consented to the assignment of the lease unless and until formal settlement takes place.”

74 On 12 November 2003 Beilby Poulden Costello wrote to Paul Ward-Harvey & Co (Exh.4 p10). The letter set out the problems in relation to the title to the four items of plant. It referred to the fact that the vendor had not operated the business following the exchange of contracts and pointed out the serious misdescription of the Mitsubishi Izuzu as being a 6 ton vehicle. The solicitors then advised as follows;

‘These significant problems lead our client to make the following offer. It is prepared to settle the matter on the following bases:

1. That the assignment of lease proceeds with settlement to take place at Bruce & Stewart.

2. That our client pay to your client $60,000 less $16,000 paid, i.e. $44,000 net in full settlement of the Contract for the Sale of Business subject to item 3 given the damage to the goodwill of the business.

3. That your client be permitted to remove the entirety of the items 1-8 referred to as ‘plant and equipment’ in the Contract for the Sale of Business.

With the greatest respect to your client, our client is in effect paying this money as ‘key’ money for the lease and has also incurred substantial expenses in so doing.

We also refer you to the attached letter from Bruce & Stewart and note that there appears to be outstanding rentals which need to be paid and adjusted on settlement out of the settlement monies.’

75 On 14 November 2003 Paul Ward-Harvey & Co forwarded a facsimile to Beilby Poulden Costello (Exh.4 p7) in the following form;

‘We refer to your fax of the 12th of November 2003.

We further refer to your client’s failure to complete the contract herein within the time specified by the contract and also within the time specified by the Notice to Complete. Further we note your client’s repudiation of the contract appearing in your fax of the 12th instant.

On behalf of our client we hereby give notice of termination of the contract pursuant to clause 22 thereof. Our client reserves its further rights.’

76 The vendor purported to terminate the contract and sought to retain the deposit on three bases as set out in the vendor solicitor’s letter dated 14 November 2003 as follows;

1. Failure to complete the contract within the time specified by the contract.

2. Failure to complete the contract within the time specified by the Notice to Complete.

3. An allegation that the purchaser had repudiated the contract on the basis of the statements made in the purchasers’ solicitors letter dated 12 November 2003.

77 The vendor was not entitled to terminate the contract because of the purchasers’ failure to complete within the 7 days nominated in the contract. Failure to perform on time justified termination if it amounts to a breach of an essential term, breach going to the root of the contract or repudiation. There was no provision in the contract making settlement within 7 days an essential term of the contract.

78 The vendor served a Notice to Complete on 21 October. The solicitors acting for the purchaser Beilby Poulden Costello on 28 October requested an extension of time for completion prior to the expiration of the time, namely 3pm on 29 October. The solicitors for the vendor agreed to the extension on certain conditions. The solicitors for the purchasers indicated they could not accept those conditions. The time for completion in accordance with the Notice to Complete passed, and the solicitors continued to negotiate. In my view if the vendor wished to rely on the Notice to Complete, then it was necessary for it to do so at the time stipulated in the notice. Its failure to do so, in my view resulted in time ceasing to be of the essence. In my view the vendor thereby lost the right to terminate based on that notice and would be required to serve another notice if it wished to terminate for failure to complete within a certain time (see Mehmet v Benson [1965] 113 CLR 295 at 303). On that basis I am of the view that the vendor was not entitled to rescind on the basis of the failure of the purchaser to comply with the Notice to complete.

79 I further find that the vendor was not entitled to terminate the contract based on the purchaser’s failure to comply with the Notice to Complete because the law is quite clear that for the vendor to be able to rely on a default of the purchaser, the vendor must prove that it was ready, willing and able to proceed to completion when it issued the Notice to Complete on 21 October, and that it was not in breach of its obligations under the contract (see Butt, The Standard Contract for Sale of Land in New South Wales(paras 15.17 to 15.22)

80 I have previously found that a term of the agreement between the vendor and the purchaser was that stipulated in the letter from the purchasers’ solicitors dated 8 October 2003 to the effect that the vendor;

‘Will provide our client, prior to the settlement, with confirmation that the sublessor will grant the lease in the name of Hoxton Park Sand and Soil Pty Ltd.’

81 I have already set out, applying the objective test, the terms implied by that clause in the agreement entered into by the parties. At no stage did the vendor seek to comply with that condition of the agreement. Indeed as I have found previously (see paragraph 63 hereof) as at 27 October 2003 the vendor had not even applied to the sublessor for consent to the assignment of the lease. The vendor was not therefore entitled to issue the Notice to Comple6e on 21 October (McNally v Waitzer 1981 1 NSWLR 294). The purchaser’s solicitors clearly and correctly pointed that out to the vendor’s solicitors in their letter of 24 October (Exh.4, p70) and 29 October (Exh.4,p66). I find that the vendor was not entitled to rely on an alleged failure to comply with a Notice to Complete which it was not entitled to serve as a basis for terminating the contract.

82 The vendor’s solicitor submitted the vendor could rely on the letter from Bankstown Airport dated 19 October. I reject that submission. I set out the terms of the letter from Mr Trajkovski to Bankstown Airport and its reply at paras 30,31,32 and 33 hereof. I made findings rejecting such proposition at paras 34 and 63.

83 I find further that the plaintiff was not ready, willing and able to complete the purchase as at 21 October because I am not satisfied that the vendor was in a position to give good title to the items of plant included in the Contract of Sale. They were not registered in the name of the vendor and I am not satisfied on evidence that the vendor had provided the purchaser with the necessary particulars to enable the purchaser to make proper inquiries of REV and other organisations to check the title of the plant, and I am not satisfied that the vendor was in a position to transfer title to the plant. The vendor’s replies to requisitions in relation to the plant were unsatisfactory.

84 I find that the plaintiff’s conduct in relation to the matter especially after Beilby Poulden Costello were instructed to act on behalf of the purchaser was completely unreasonable. I find that those solicitors and the purchaser went to great trouble and expense to obtain the confirmation of the assignment of the lease. They were able to achieve great assistance and expedition from the solicitors acting for the sublessor. In those circumstances I find the actions of the vendor in purporting to require settlement on 6 November 2003 in accordance with a demand made on the same day, as completely unreasonable.

85 The vendor was not entitled to terminate the contract on alleged failure of the purchaser to comply with the Notice to Complete.

86 I set out the details of the offer made by the solicitors acting for the purchaser in their letter of 12 November. I am not satisfied such letter and such offer amounted to a repudiation of the contract by the purchase. The solicitors in their letter detailed the problems in relation to the title to the plant. Clearly they confirmed that if they were able to arrange the assignment of the lease, as seemed likely, they would still be in the position that they, as solicitors, could not ensure their clients would get good title to the plant as a result of the default of the vendor in providing proper evidence of title. In those circumstances it seems to me that the offer made by the solicitors was a reasonable offer to settle the purchase on an alternate basis and in no way amounted to a repudiation of the agreement.

87 For all of those reasons I am not satisfied that the vendor was entitled to terminate the contract on 14 November 2003. It follows that the Notice of Termination was invalid and amounted to a repudiation by the vendor of the contract. It follows that the purchaser is entitled to a refund of the deposit paid.

88 The defendant filed a Cross Claim pleading that the issue of the Notice of Termination by the plaintiff was invalid and amounted to a repudiation by the vendor of the contract. I have found that to be the position. The defendant claimed the following amounts for loss and damages suffered as a result of the plaintiff’s termination of the contract;

1. Expenses involved in forming company Hoxton Park Sand and Soil Pty Ltd - $1,400.00.

2. Expenses paid to solicitors for sublessor to obtain assignment of lease $1,461.90.

3. Fees incurred to National Bank to procure loan for the purchase of the business - $2,767.00.

4. Expenses in purchasing stationery for business - $1,200.00.

5. Legal fees incurred in connection with contract to purchase business - $8,083.90.

6. Expenses incurred in transporting a container to the premises - $460.00.

89 The measure of damages is the sum of money which will restore the defendant to the position that the defendant would be in but for the termination of the contract. The damages for the breach is limited to the damages which would be in the actual or implied knowledge of the parties at the time of entering into the contract.

90 Mr Nassif was not cross examined to any extent in relation to the expenses claimed. I propose to allow them except for the following;

1. Expense in forming company

The evidence indicated that the defendant has changed the name

of the company and is apparently using the company. It would
therefore appear that the defendant obtained some benefit from
the formation of the company. I propose to allow the amount
of: $700.00

2. Expense in transporting container

I am not persuaded that the defendant is entitled to recover

this amount as damages against the plaintiff. Nil

The amount allowed for damages will therefore be $14,212.80.

The defendant will of course be entitled to the refund of the deposit paid of $16,000.00.

PROPOSED ORDERS

91 The court was informed on the first day of hearing that the name of the defendant had been changed from Hoxton Park Sand and Soil Pty Ltd to 2J Pty Ltd. There was no objection to the change in the name of the defendant in the proceedings to that name. I order that the name of the defendant in the proceedings be changed to 2J Pty Ltd.

92 I note that Mr Ward-Harvey, the solicitors for the plaintiff, is holding the deposit of $16,000.00 in his trust account as stakeholder. Clearly it is the intention of the court that that sum should be paid by Mr Ward-Harvey to the defendant or as the defendant directs. If there is any particular order of the court required or form of authority required particularly in relation to trust account regulations, then those matters should be brought to my attention.

93 I would propose to make the following orders:

(i) On the plaintiff’s claim there will be judgment for the defendant.

(ii) On the defendant’s Cross Claim there will judgment in favour of 2J Pty Ltd in the sum of $30,212.80.

(iii) The plaintiff will be ordered to pay interest on the judgment debt from 1 December 2003 to date to be calculated by the Registrar.

(v) The name of the defendant is changed to 2J Pty Ltd.

94 I shall hear from the parties in relation to the proposed orders.

B.A. LULHAM

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Citations

Combined Civil Engineering Pty Ltd t/as Hoxton Park Sand and Soil v Hoxton Park Sand and Soil Pty Ltd [2006] NSWLC 35

Cases Citing This Decision

0

Cases Cited

6

Statutory Material Cited

0

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24

Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCATrans 367

CITATION:	Combined Civil Engineering Pty Ltd t/as Hoxton Park Sand and Soil v Hoxton Park Sand and Soil Pty Ltd [2006] NSWLC 35
JURISDICTION:	Civil
PARTIES:	Combined Civil Engineering Pty Ltd t/as Hoxton Park sand and Soil (plaintiff) Hoxton Park Sand and Soil Pty Ltd (defendant) Combined Civil Engineering Pty Ltd t/as Hoxton Park Sand and Soil (cross defendant)
FILE NUMBER:	7813/05
PLACE OF HEARING:	Downing centre Local Court
DATE OF DECISION:	09/13/2006
MAGISTRATE:	Magsitrate B A Lulham
CATCHWORDS:	Contract - Notice to complete - Forfeit of deposit - Repudiation - Uncertainty - Mistake
LEGISLATION CITED:
CASES CITED:	Upper County District Council v Australian Chilling and Frezing Co. (1968) 118 CLR 429 Axelson v O'Brien (1949) 80 CLR 219 Bridge Wholesale Acceptance Corp (Australia) Ltd v Burnard (1992) 27 NSWLR 415 ANZ Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695 Hall v Busst (1960) 104 CLR 206 Trustees Executors & Agency Co. Ltd v Peters [1960] 102CLR537 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Pacific Carriers Ltd v BNP Pariba (2004) 78 ALR P1048 Mehmet v Benson [1965] 113 CLR 295 McNally v Waitzer (1981) 1 NSWLR 294
REPRESENTATION:	Mr Ward-Harvey - Counsel Paul Ward-Harvey & Co. - Solicitors Mr A J Tudehope - Counsel Paul C Fabian & Co - Solicitors
ORDERS:	On the plaintiff's claim there will be judgment for the defendant. On the defendant's Cross Claim there will be judgment in favour of 2J Pty Ltd in the sum of $30,212.80.The plaintiff will be ordered to pay interest on the judgment debt from 1 December 2003 to date to be calculated by the Registrar. The plaintiff is ordered to pay the costs and disbursements of the defendant in the action. The costs and disdursements will be as agreed between the parties. In default of agreement within 28 days the costs are to be assessed under the Legal Profession Act. The name of the defendant is changed to 2J Pty Ltd.

[2006] NSWLC 35

13/09/2006