CS1 Evaline Pty Ltd v Ong - [2023] NSWSC 1065

Supreme Court

New South Wales

Medium Neutral Citation: CS1 Evaline Pty Ltd v Ong [2023] NSWSC 1065
Hearing dates: 4 September 2023
Date of orders: 4 September 2023
Decision date: 04 September 2023
Jurisdiction: Equity - Real Property List
Before: Parker J
Decision:
See [25]

Catchwords:
LAND LAW – claim by purchaser for specific performance of contract for sale of land – purchaser failed to complete by completion date – vendors issued notice to complete – vendors thereby affirmed contract – purchaser ready and willing to complete at completion date specified in notice to complete – vendors failed to perform – purchaser has continued to seek performance since – purchaser remains ready and willing to complete – vendors have not performed – specific performance ordered

Legislation Cited:
Nil

Cases Cited:
Foran v Wight (1989) 168 CLR 385
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397

Texts Cited:
Nil

Category: Principal judgment
Parties: CS1 Evaline Pty Ltd (Plaintiff)
Khanh Son Ong (First Defendant)
Ngoc Hanh Ong (Second Defendant)
Representation:
Counsel:
G Stapleton/R Wathukarage (Plaintiff)
Solicitors:
HFW (Plaintiff)
In person:
KS Ong (First Defendant)

File Number(s): 2022/377079
Publication restriction: Nil

JUDGMENT- ex tempore

Revised from transcript and annotated; issued on 5 September 2023

This is an application for specific performance of a contract for the sale of land. The land in question is a property at Evaline Street, Campsie, in Sydney. The defendants, Khanh Son Ong and Ngoc Hanh Ong, are the vendors. The plaintiff, CS1 Evaline Pty Ltd (“CS1 Evaline”), is the purchaser.
The contract bears the date 5 July 2022. It was entered into pursuant to an exercise of an option which had originally been granted by Mr and Mrs Ong to a company named Tipstrong Pty Ltd (“Tipstrong”). CS1 Evaline was the assignee of Tipstrong.
The contract provided that settlement was to take place 42 days after the date it was made. It is common ground between the parties that that date was 16 August 2022. But the contract was not completed on that date. It seems that this was because CS1 Evaline wanted more time. Eventually, the solicitors acting for Mr and Mrs Ong, Truston Lawyers, issued a notice to complete to the solicitors acting for CS1 Evaline, HFW Lawyers.
The notice required completion on 9 September 2022. On the afternoon of 8 September, the day before the contract was due to complete, HFW wrote to Trustons stating that the purchaser was ready, willing and able to complete the contract. By this stage, a PEXA workspace had been opened for the access of all interested parties to enable the completion to take place electronically. HFW also noted that Tipstrong was still recorded on the title search as a caveator of the property. HFW noted that the caveat needed to be removed to allow the settlement to proceed.
Further correspondence passed between Trustons and HFW on the day of settlement, 9 September. It appears that the caveat was in fact removed late…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CS1 Evaline Pty Ltd v Ong

Details

AGLC: CS1 Evaline Pty Ltd v Ong [2023] NSWSC 1065
Case: [2023] NSWSC 1065
Decision Date: 04 September 2023

CaseChat Overview and Summary

The dispute between CS1 Evaline Pty Ltd and Ong arose in the Federal Circuit Court of Australia, where the plaintiff sought specific performance of a contract for the sale of land. The plaintiff had entered into a contract to purchase land from the defendants but was unable to complete the purchase by the stipulated date. Following this, the defendants issued a notice to complete, which effectively affirmed the contract. The plaintiff remained ready and willing to complete at the date specified in the notice to complete, but the defendants did not perform, prompting the plaintiff's application for specific performance.

The court needed to determine whether the contract was affirmed by the notice to complete, and if the plaintiff remained ready and willing to perform its obligations under the contract. Furthermore, the court had to consider the defendants' failure to perform and whether the plaintiff's continued readiness and willingness to complete justified the granting of specific performance. The key legal issue was whether the contract could be enforced by specific performance given the circumstances surrounding the completion date and the subsequent actions of the parties.

The court found that the notice to complete issued by the defendants amounted to an affirmation of the contract. It held that the plaintiff had remained ready and willing to complete since the date specified in the notice to complete, and that the defendants' failure to perform justified the granting of specific performance. The court emphasised the importance of the readiness and willingness of the purchaser to complete and the unequivocal nature of the defendants' failure to perform. Consequently, the court ordered specific performance, requiring the defendants to complete the sale of the land to the plaintiff in accordance with the original contract terms.

Orders