David Haig Wilkins and Judith Alana Wilkins v Jack Ernest James No. SCGRG 93/380 Judgment No. 4011 Number of Pages 3 Conveyancing

[1993] SASC 4011

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MILLHOUSE J

CWDS
Conveyancing - relationship of vendor and purchaser matters arising between contract and conveyance - Appellants failed to complete purchase of house - respondent extended time for settlement at appellants' request - respondent forwarded Notice to Complete - appellants did not receive or accept Notice to Complete - respondent sent further notice to complete - respondent sold house to new party and sued appellants for damages. Held - for respondent - on appeal - dismissed.

HRNG ADELAIDE, 8 June 1993 #DATE 24:6:1993
Counsel for appellant:     Mr P Heywood-Smith
Solicitors for appellant:    Sykes Bidstrup
Counsel for respondent:     Mr G Britton
Solicitors for respondent: Caldicott and Co

ORDER
Appeal dismissed.

JUDGE1 MILLHOUSE J This appeal is over the failure of the appellants to complete the purchase of the respondent's house at Brighton. 2. The parties entered into a contract for sale and purchase on 2 October 1991: settlement to be on 16 December. The contract is in a form "approved by the Real Estate Institute of South Australia Incorporated" according to the heading. The purchase price was $207 500: the appellants paid a deposit of $2 000. The 16 December came and went: there was no settlement. The appellants continued, up to the end of the year, to express interest in buying. Through the respondent's agent they asked for an extension of time until 19 January 1992, a Sunday: the respondent gave them until 22 January. His solicitors wrote a letter to the appellants:-
    " We act for Jack Ernest James, the vendor of the above property.
    We have to hand your letter to Annette Bradshaw" (the vendor's
    agent) "received by her on 30 December 1991 in which you request
    an extension to settle on the above property to 19 January 1992.
    We have taken instructions from our client that he will grant you
    the further extension. Please find enclosed a Notice to Complete
    requiring you to complete settlement by 22 January 1992. Our
    client is not prepared to waive penalties. You may be aware that
    the house was tenanted at the time of the contract. Our client
    then arranged for vacant possession in time for settlement on 16
    December 1991. Furthermore, he has had to seek bridging finance
    as a result of your failure to complete settlement. Therefore,
    our client has incurred considerable losses as a result of your
    default. Our client will expect his losses to be made good." 3. The letter and Notice to Complete were sent by registered post to the appellant's address shewn in the contract. For some reason neither was received until 20 January when collected from the Post Office. However clause 19 of the contract provides:-
    " Any notice or demand to be given or made on a party to this
    contract is sufficiently given or made if in writing signed by the
    party giving or making it or by that party's authorised agent,
    addressed to that party and either:
    (a) ......... or
    (b) sent by post as a registered letter addressed to that party by
    name at the aforesaid place of abode or business and not returned
    through the post office undelivered, in which case that letter
    shall be deemed to be served at the time at which the registered
    letter in the ordinary course of post would be delivered, or....." 4. This was just what the respondent's solicitor did and I do not think the appellants may now complain that they did not get the letter or Notice. The respondent was not to know that and was entitled to give the Notice in accordance with the contract. 5. Clause 17 (3) of the contract is in this form:-
    "If default is made by the Purchaser in the due observance or
    performance of any of the obligations on the Purchaser's part to
    be observed and performed prior to or on the Settlement Date and
    any such default continues unremedied for a period of not less
    than seven days the Vendor may at any time thereafter give notice
    to complete to the Purchaser. The notice shall appoint a time for
    settlement (being a time between 10.00 a.m. and 3.00 p.m. on a
    business day) and shall require the Purchaser to settle at the
    time appointed in the notice. If the Purchaser fails to comply
    with the terms of the notice, the Vendor may have, terminate this
    contract by notice in writing to the Purchaser." 6. As the letter I have quoted shews, the Notice was given, with the letter, on 7 January. 7. The first point argued by Mr Heywood-Smith for the appellants was that at the time when the Notice was given the appellants were not in default because the respondent had already agreed to the request for an extension to 19 January: no notice could be given until after seven days from the date of default which would have been 19 January. 8. I do not accept the argument. The appellants had been in default since 16 December and in my view the respondent was perfectly entitled to bring the matter to a conclusion by giving the formal Notice to Complete. He complied with the terms of the contract. How much longer should the appellants have been allowed to prevaricate? It is quite clear from the evidence that they could not raise the money for the purchase price and there was no likelihood they would be able to in the foreseeable future. That the respondent had informally agreed to the appellants' request for more time is not to the point. One can look at it in two ways on Mr Heywood-Smith's argument either the respondent would have been better off not having agreed to the extension and merely giving the Notice or the Notice was simply a formal confirmation of the agreement to give the appellant until 19 January to settle. Either way it would be quite wrong to penalise the respondent, to allow the appellants to take advantage of him: Mr Heywood-Smith's argument implies that it would not be wrong. 9. His other point was that the time for completion given in the Notice was insufficient. The Notice was dated 7 January. Pursuant to clause 19 it must be deemed to have been delivered by 13 January at the latest, thus allowing nine days to complete. This is of course, significantly less than the 14 days which is the standard but as the High Court said in Sindel v Georgiou (154 CLR
661 at 670):- " The determination of what is a reasonable time for completion of a contract for the sale of land, judged in the light of the circumstances of the particular case, is very much a matter of impression." 10. My impression is that the time allowed was not too short. How could it be when the appellants themselves had asked for an extension until 19 January and the date stipulated was three days later, the 22 January? 11. Mr Heywood-Smith's argument is weakened, too, by the fact that when the respondent's solicitor found out that the appellants had not in fact received the Notice until 20 January he gave them another notice allowing them until 24 January. 12. Mr R H Kleinig, SM who heard the action has accurately set out the facts in his Reasons and made the proper findings: in particular I agree heartily with his view that the argument put to me by Mr Heywood-Smith (and put to him by Mr Michael Sykes) on time given for completion was "bordering on unconscionable." 13. That disposes of the appellants' two arguments. There is no need for me to say more. 14. I had at first some doubt about some of the heads of damage allowed by the learned special magistrate, especially the $6185.96 for bridging finance for the respondent's new house in Melbourne. However on reflection I think all the damages were properly awarded. 15. During the hearing Mr Heywood-Smith told me that the appellants abandoned any appeal against the order dismissing the counter-claim. 16. The appeal is dismissed.