Dobson Project Services Pty Ltd v Emerald Asset Pty Ltd - [1999] WADC 121

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DOBSON PROJECT SERVICES PTY LTD -v- EMERALD ASSET PTY LTD & ORS [1999] WADC 121

CORAM: YEATS DCJ

HEARD: 27 AUGUST 1999

DELIVERED : 17 NOVEMBER 1999

FILE NO/S: CIV 359 of 1997
CIV 1041 of 1997

BETWEEN: DOBSON PROJECT SERVICES PTY LTD (ACN 062 830 228)
Plaintiff
AND
EMERALD ASSET PTY LTD (ACN 075 175 450)
First Defendant
ROBERT WAYNE SYDNEY-SMITH
PATREEN MARY SYDNEY-SMITH
ANTHONY KASTROPIL
JAMES ALAN RAWLINGS
NEIL ALWYN HAMILTON
SUSAN HAMILTON
Second Defendants
CUSMA CORPORATION PTY LTD (058 801 442)
Third Defendant

Catchwords:

Contract - Whether Part V of Strata Titles Act applies to a contract for the sale of a whole parcel of land - Unlawful repudiation of contract - Meaning of "original proprietor" - Meaning of "proposed lot" - s69 Strata Titles Act.

Legislation:

Strata Titles Act 1985

Result:

Unlawful repudiation of contract.

Representation:

Counsel:

Plaintiff:     Mr H Kremer
First Defendant             :     Mr I A Morison
Second Defendants       :
Third Defendant           :

Solicitors:

Plaintiff:     H Kremer & Co
First Defendant             :     Corsers
Second Defendants       :
Third Defendant           :

Case(s) referred to in judgment(s):

Bowes v Chaleyer (1923) 32 CLR 159
Chan v Dainford Ltd (1985) 155 CLR 533
Cooper Corporation Pty Ltd & Ors v Mahedran Sinnatamby & Anor, unreported; SCt of WA; Library No 5559; 28 September 1994

Case(s) also cited:

Agaiby v Pantham Nominees Pty Ltd (1985) 55 LGRA 405
Boston Deep Sea Fishing & Ice Co v Ansell (1888) 39 Ch D 339
Coast Securities No 9 Pty Ltd v Bondoukou Pty Ltd (1986) 69 ALR 385
Fercometal SARL v Mediterranean Shipping Co SA (1988) 3 WLR 200
Palmerston (Qld) Pty Ltd v Fogl [1983] 2 QD R 700
The Hansa Nord (1976) QB 44
Universal Cargo Carriers Corp v Citati (1957) 2 QB 401
Wight v Foran (1987) 11 NSWLR 470

YEATS DCJ: This is the trial of two preliminary issues of law:
(1)Does Part V of the Strata Titles Act apply to the contract in writing made on 15 August 1996?
(2)Did the first defendant by its written notice to the plaintiff dated 15 December 1996 lawfully terminate the contract or did the first defendant thereby unlawfully repudiate the contract?

Chronology

The parties agreed that the questions of law should be answered by reference to the pleadings and to the plaintiff's documents excluding document number 4. From those documents the following facts emerge.
The plaintiff was the sole proprietor of land situated at 41 Beatty Avenue, East Victoria Park being Lot 222 on Plan 1734, Certificate of Title Vol 1620 Folio 937. On 15 August 1995 the plaintiff accepted an offer in writing from the first defendant to sell the land for a purchase price of $470,000 conditional on the plaintiff developing the property by building four residential units upon it ("the contract"). The purchase price was to be paid by a deposit of $60,000 payable within 21 days of acceptance with the balance to be paid on settlement. Settlement was to occur "14 days after receipt of dealing number from the Titles Office". Between 13 September and 26 September 1996 the first defendant paid the $60,000 deposit to the third defendant as stakeholder. On 17 September 1996 the first defendant provided the plaintiff written approval of variations to the building specification annexed to the contract as Annexure A.
Some three months later on 12 December 1996 the plaintiff received the first defendant's Notice of Termination of the Contract. The reason for termination was said to be the plaintiff's failure to comply with s69 of the Strata Titles Act 1985 ("the Act") by failing to give the first defendant the notifiable information required by ss69 and 69C of the Act. The first defendant relied on s69D(1) of the Act which provides:
"… if a vendor has failed to give to a purchaser information that substantially complies with section 69 or 69C and at the time required by that section, the purchaser has a right to avoid the contract by notice in writing given to the vendor before settlement of the contract."
The plaintiff considered the Notice of Termination was not well founded and treated it as a repudiation of the contract. The plaintiff gave notice under cl 19(1)(d) of the 1994 General Conditions for the Sale of Land of the plaintiff's election to forfeit the deposit paid except so much as exceeds 10 per cent of the purchase price, to sue the first defendant for breach of contract and to resell the property claiming as liquidated damages any deficiency and all expenses.
On 30 January 1997 the first defendant made application for refund of the stamp duty paid on the contract. On 27 March 1997 the plaintiff commenced civil action No 1041 of 1997 in the District Court at Perth against the first defendant. That action has been consolidated with civil action No 359 of 1997 between the plaintiff and the third defendant but the preliminary issues to be determined only arise in action No 1041 of 1997.

Question 1: Does Part V of the Act apply to the contract?

Part V of the Act is titled "Protection of Purchasers". It provides in s69:
"Information to be given to purchaser
69.    (1)       A purchaser of a lot or proposed lot in a scheme shall be given the notifiable information, as provided by sections 69A and 69B, before he or she signs a contract to buy the lot or proposed lot.
(2)       The vendor of a lot or proposed lot in a scheme shall ensure that subsection (1) is complied with either ¾
(a)by giving the notifiable information to the purchaser on the form referred to in subsection (3); or
(b)by ensuring that the notifiable information forms part of the contract.
(3)       A form or forms shall be prescribed for use by vendors in giving the notifiable information under this section.
(4)       In any civil proceedings arising out of or connected with a contract, the onus of proving that the notifiable information was duly given in accordance with this Part shall lie upon the vendor."
Section 69A sets out the notifiable information to be provided to purchasers by all vendors:
"69A. The notifiable information to be given under section 69 by every vendor is —
(a)the name and address of the vendor and the purchaser;
(b)a copy of either the registered strata/survey-strata plan or the proposed strata/survey-strata plan complying with section 5(1)(a), (b), (d) and (e) or 5A(1)(a) to (c), (e) and (f), as the case may require, and particularly drawing attention to information that relates especially to any lot or proposed lot to which the contract relates;
(c)the unit entitlement of every lot within the scheme and the aggregate unit entitlement or, if the strata/survey-strata plan has not been registered, those entitlements as proposed;
(d)the contents of the by-laws for the scheme that are ¾
(i)in force; or
(ii)resolved to be made but not yet in force by virtue of section 42(4),
but only so far as they amend, repeal or add to the by-laws set out in Schedules 1 and 2;
(e)in the case of a proposed scheme, the proposed by-laws for the scheme but only so far as they amend, repeal or add to the by-laws set out in Schedules 1 and 2; and
(f)any information prescribed for the purposes of this section."
Section 69B sets out the notifiable information to be provided by an "original proprietor".
"69B (1) This section applies only if ¾
(a)the strata/survey-strata plan has not been registered;
(b)the first annual general meeting of the strata company has not been held; or
(c)the original proprietor ¾
(i)is the registered proprietor of 50% or more of the lots in the scheme; or
(ii)has votes at a general meeting of the strata company equal in value to 50% or more of the aggregate unit entitlement of the lots in the scheme.
(2) Where this section applies, the notifiable information to be given under section 69 by a vendor who is the original proprietor is, in addition to that required by section 69A ¾
(a)details of every agreement for the provision of any amenity or service to the strata company or to any part of the parcel that ¾
(i)the company or the original proprietor has entered into and that is still in operation; or
(ii)the original proprietor in his own right or exercising the power of the company proposes to enter into,
including the terms and conditions of every such agreement, the consideration for it, and the estimated costs to the proprietor of the lot;
(b)particulars of any direct or indirect pecuniary interest that the vendor has in any agreement referred to in paragraph (a), other than as a proprietor;
(c)the estimated receipts and expenditure of the company for the period of 12 months starting with ¾
(i)the day of registration of the strata/survey-strata plan; or
(ii)the day of the last annual general meeting or if no such meeting has been held during the 15 months preceding the date of the contract, the day for settlement designated in the contract,
whichever is the later;
(d)the estimated contributions of the proprietor under section 36(1) and (2) during the period referred to in paragraph (c);
(e)details of every lease granted, and still in operation, or proposed to be granted to the purchaser or any other person in relation to the common property;
(f)details of every licence, right of exclusive use and enjoyment, or special privilege granted, and still in operation, or proposed to be granted to the purchaser or any other person in relation to the common property."
"Original proprietor" is defined in s3 of the Act. "Original proprietor" in relation to a scheme, means the person by whom the parcel that is the subject of that scheme is held in fee simple at the time of registration of the strata/survey-strata plan to which the scheme relates.
For the purposes of Part V "original proprietor" is further defined to include:
"In respect of a proposed lot or proposed plan, the person who upon registration of the proposed plan becomes the original proprietor."
The first defendant contends that it was "a purchaser of a lot or proposed lot in a scheme" (s69(1)) and the plaintiff as vendor was required to give the first defendant the notifiable information before the first defendant signed the contract. It was accepted by both parties that the plaintiff did not give the first defendant the notifiable information required by s69 of the Act.
The plaintiff's primary contention is that s69 does not apply to this contract because the contract was not a contract for the sale of a lot or a proposed lot but was a contract for the sale of the whole parcel of land comprising Lot 222. For the purposes of the Act "parcel" is defined and means "the land comprised in a strata/survey-strata plan".
In support of this contention the plaintiff relies on the definition of "lot" in s3 of the Act:
"lot" In relation to a strata scheme, means one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan, …"
"Lot" is separately defined in s3 in relation to a survey-strata scheme but both parties agreed that this contract never contemplated a survey-strata plan or a survey-strata scheme (s4(1b), s5(A) and I will not consider that definition. Likewise where provisions of the Act refer to survey-strata plans or schemes I will omit those references for simplicity.
"Scheme" is defined in s3 to mean a strata scheme.
"Strata scheme" is defined in s3 to mean —
"(a)the manner of division, from time to time, of a parcel into lots or into lots and common property under a strata plan and the manner of the allocation, from time to time, of unit entitlements among the lots; and
(b)the rights and obligations, between themselves, of proprietors, other persons having proprietary interests in or occupying the lots and the strata company, as conferred or imposed by this Act or by anything done under the authority of this Act and as in force from time to time."
The first defendant contends that the contract was for the sale of the proposed lots. It concedes that the contract was for the sale of all four of the proposed lots which, along with the common property, comprised the parcel of land. But the first defendant contends that makes no difference to the application of s69. It was submitted that s69 was inserted into the Act in order to protect a purchaser of a proposed lot in a scheme and as the first defendant was a purchaser of a proposed lot in a scheme and, given that s69 was not complied with, the first defendant was able to rely on s69D and to avoid the contract.
The plaintiff's principal submission depends on the definition of a "lot" or a "proposed lot" as "one or more cubic spaces forming part of the parcel to which the strata scheme relates". The plaintiff contends that when one developer such as this plaintiff develops and sells the entire development to another developer, as was contemplated in this case, that is not the sale of a lot or proposed lot because it is not the sale of "part of the parcel".
In support of this the plaintiff relies on the terms of the contract, particularly that settlement would be "14 days after receipt of dealing number from the Titles Office".
It was common ground between the parties that the usual procedures of the Titles Office are set out in the manual published by DOLA "Land Titles Registration Practice in Western Australia" Fourth edition. Paragraph 6.160 of DOLA practice relevantly provides:
"A new strata/survey-strata plan is lodged by the surveyor with the Survey Advice Officer at DOLA, and on payment of the prescribed fees it is allocated a number.
The Plan is then entered on the computer records and scanned with a legal status of 'subject to examination'. After the plan has been examined to ensure that it is in accordance with the various Acts, and Regulations, the status is changed to "examined" or "examined - subject to requisitions" on the records. …
The proprietor of the parcel may apply to register the strata/survey-strata plan either simultaneously with the lodgement of the plan or at any time thereafter. The form to use is an application form A8 … the land description used should be that shown on the title for the original land parcel and all the proprietors, if more than one, must join in and sign the application. The existing duplicate certificate of title (if any) must be produced for cancellation.
In cases of Simultaneous Lodgement where the application is lodged with no other documents except those required for the application to proceed, the time taken to create and register the new titles will be reduced, as examination of the plan and preparation of the new titles are able to proceed concurrently …
Concurrently with the registration of the strata/survey-strata plan, separate certificates of title are prepared for each lot on it in the name of the applicant. No certificates of title are created and registered for common property in strata plans or for common property lots in survey-strata plans."
Both parties agreed that the "number" referred to in the first paragraph of DOLA practice is the "dealing number" allocated when the new strata plan is lodged by the surveyor on payment of the prescribed fee. Therefore under this contract, 14 days after the plaintiff lodged the strata plan, paid the fee and received the dealing number, settlement would take place and the land would be conveyed to the first defendant. It is apparent from other provisions of the contract that it was a condition of the contract that prior to settlement the plaintiff was to have constructed four units on the land pursuant to the specifications in annexure A to the contract, the plans in annexure B to the contract and the detailed working drawings and specifications in annexure C of the contract.
The building specification annexure A includes "preliminaries: all inclusive including site survey and strata title all council fees" and under "Fencing: Super six fencing as required for local authority and strata title". It should be noted that among the variations to the specifications approved by the first defendant on 17 September 1996 were changes in "preliminaries" to "all inclusive including site survey, strata number for dealings and council fees. Strata fees."
The contract therefore contemplates the building of units and preparation of the land by the plaintiff prior to settlement to the stage where there is a strata plan capable of registration as strata titled lots. But the contract does not require the plaintiff to register the strata plan. I accept the submissions of the first defendant that it would be possible for the plaintiff to have not only lodged the strata plan but to have simultaneously applied to register the strata plan at the Titles Office. But the significant point is that the contract did not require the plaintiff to register the strata plan. Because of the 14 day period allowed until settlement and the date of settlement being fixed merely by reference to the plaintiff receiving a dealing number, it seems clear to me that it was not the intention of the parties to the contract that the strata plan would be registered by the plaintiff prior to settlement.
I believe it is significant that the only requirement placed on the plaintiff prior to settlement was the receipt of a dealing number. The case of Cooper Corporation Pty Ltd & Ors v Mahedran Sinnatamby & Anor, unreported; SCt of WA; Library No 5559; 28 September 1994, is a decision concerning a similar contract. In the Cooper Corporation case the contract for the sale of a block of land contained a provision for fixing the date of settlement expressed to be "on or before seven days after issue of a strata plan number". The plaintiff submitted and I accept that the strata plan number referred to in the Cooper Corporation case is the same as what is referred to as a dealing number in this case. The facts in the Cooper Corporation case were remarkably similar to this case.
"The plaintiffs were the owners of a block of land in a title. The plan appeared to be that the plaintiffs would erect on that block of land four units and the defendants agreed to buy the whole of the land if and when the units were erected on it. To give effect to that an offer was made by the defendants to purchase the land in the title and that offer was made on 12 May 1981. It did not contain a covenant that the plaintiffs would build the units that the defendants apparently had in mind to buy; it was expressed to be that the offer was subject to the vendors building those units. Therefore, having got a commitment the plaintiffs did build the units in accordance with what the parties had in mind.
I am satisfied on the terms of the contract that first of all it was to be for a purchase price of $350,000 which would be the land with the units as contemplated and there was to be a deposit of $6000 which was paid. The settlement date I find was expressed to be on or before seven days after issue of a strata plan number and I am satisfied that that was on the contract and had been accepted by the purchasers." (Cooper Corporation case at pp2-3)
It was necessary in the Cooper Corporation case for the court to determine what the parties intended by the term of their contract that the settlement day was to be on or before seven days after issue of a strata plan number. Pidgeon J determined that issue by receiving evidence of Titles Office practice.
"It was submitted to me that if one follows the Strata Titles Act 1966 and the Regulations, a strata plan number would not be effectively allocated until registration of the strata plan. I am satisfied, however, that the parties intended the time to be when, in the normal practice of the Titles Office, the strata plan number is first made known. I had evidence from Mr Black as to what was the Office of Titles procedure. I consider the prevailing practice is what is all important because that it what would have been in the parties' minds when they specify such a date in the manner they have. The prevailing practice is that as soon as the strata plan is lodged a number is allocated to it by the Office of Titles and made known. It is then followed by an application to register the strata plan and that is done by lodging the old title with an application to register to enable the new strata titles to issue. That, however, presumably would not normally be done until the first dealing which, in this case, would have been done at the settlement contemplated by the contract of sale with which I am dealing." (pp3-4)
… It would also be consistent with what one would have thought the parties had in mind; namely, that the plaintiffs did undertake to do the building of the units and did not require money under the terms of the contract until the units were built and until they could be conveyed separately. At all times the conveyance could have been made on the contract because the old title could be conveyed by reason of its being the whole of the land and the title. The intention of the parties was that the conveyance would not go through until it was capable of being conveyed as a strata title and under the Act that could not be brought about until the building was finished in order to get the necessary certificates under the Strata Titles Act. When it is finished it is clear on Mr Black's evidence that one lodges the plan and very shortly after the day he mentioned, I think within a day or so, dealings would have been accepted, including the dealing to which I have referred, which would make the strata plan live, namely, bringing the old certificate of title in then having the strata plan registered and new certificates issuing". (pp4-5)

The plaintiff relies on the reasoning of Pidgeon J on this issue and suggests the court should reach a similar conclusion in relation to this contract.
In this case it is clear from DOLA's practice that a dealing number issues with lodgement of the strata plan and payment of the fee. While it is true that the proprietor of the parcel may apply to register the strata plan either simultaneously with lodgement of the plan or at any time thereafter (DOLA practice), it is significant that in this case the parties to the contract agreed that settlement was dependent only on the plaintiff's receipt of a dealing number. If the parties had intended that the plaintiff register the strata plan and convey the strata titled lots at the time of settlement I would have expected the parties to have said so. I am satisfied that this contract requires no more of the plaintiff than construction of the units and lodgement of the strata plan with the fee so as to obtain a dealing number. Registration is not required.
That has important implications for the plaintiff's position under the contract. In my opinion it was not a contract for the sale of strata titled lots; it was a contract for the sale of a parcel of land which was capable of being registered as strata titled lots. I leave aside for the moment the question of whether it was a contract for the sale of proposed lots.

Original proprietor

My finding that this was not a contract for the sale of a lot but was a contract for the sale of a parcel of land which was capable of being registered as strata titled lots leads directly to a further finding. In my opinion it is clear from the terms of the contract that the parties intended settlement and conveyance of the parcel of land to take place before registration of the strata plan. Therefore the parties intended the first defendant would be the "original proprietor" in relation to the scheme, ie, the person by whom the parcel is held in fee simple at the time of registration of the strata plan.
It seems to me that the Act contemplates that the original proprietor will be the first person able to sell a lot or a proposed lot in the scheme. That is apparent from the extended definition of "original proprietor" in s68 to include in respect of a proposed lot or proposed plan the person who upon registration of the proposed plan becomes the original proprietor. Before the strata plan is registered the original proprietor who is a vendor is obliged to provide further notifiable information to a purchaser of a proposed lot "in addition to that required in s69A". That provision in my opinion confirms the intention of the legislature in enacting Part V of the Act to protect a purchaser of a lot or a proposed lot by imposing the duty to provide special notifiable information on the vendor who would inevitably be the original proprietor (the one who will become the original proprietor when the strata plan is registered). Understood in that way it is difficult to see any role for Part V of the Act in this contract as it was not a contract for the sale of a lot but was a contract for the sale of the whole parcel of land prior to registration wherein the parties intended the purchaser would become the original proprietor.

Proposed lot

My finding that the contract was not a contract for the sale of a strata titled lot but was a contract for the sale of a parcel of land which was capable of being registered as four strata titled lots does not, however, answer the first defendant's principal contention that the contract was nonetheless a contract for the sale of a "proposed lot" within the meaning of s69 of the Act.
The term "proposed lot" is not defined in the Act. "Proposed" means "put forward for consideration or acceptance" (Macquarie Dictionary). In its ordinary meaning I would think a lot would be a "proposed lot" when the lot is put forward for consideration or acceptance at the Titles Office. It seems to me that must include a lot on a strata plan lodged with the Titles Office and not yet registered. Such a meaning is consistent with a number of provisions of the Act where the word "proposed" is used to modify terms including "lot" and "plan". For example the extended definition of "original proprietor" in s68 of the Act "includes in respect of a proposed lot or proposed plan, the person who upon registration of the proposed plan becomes the original proprietor". An inference arises from that definition that prior to registration a lot or a plan should be referred to as a proposed lot or a proposed plan. Section 69A(b) refers to "a copy of either the registered strata plan or the proposed strata plan…". Again, the use of the term "proposed" suggests it is appropriate to describe a strata plan which has not yet been registered. That meaning is also consistent with the use of "proposed" in s70(1) "No person shall sell a lot in a proposed scheme before the strata plan is registered under Part II unless …"
Therefore I do accept that it was in the contemplation of the parties that at the time of conveyance the land would consist of the four proposed lots together with the proposed common property.
The first defendant relied on a series of cases to do with land development on the Gold Coast. In Chan v Dainford Ltd (1985) 155 CLR 533 the High Court considered the effect of a contract entered into by a purchaser to purchase a home unit in a building not then constructed and for which a building unit plan had not been registered under Queensland's legislation. The purchaser made payments by instalment and when he discovered that the vendors had mortgaged the property after contract and before settlement, the purchaser sought to rely on the provisions concerning instalment contracts in Queensland's Property Law Act in order to avoid the contract. Under the Queensland legislation an instalment contract was defined as "an executory contract for the sale of land in terms" … and, in the Full Court of Queensland the vendor had been successful in his submissions that this was not a contract for the sale of land because the home unit did not exist at the time of the contract. The High Court allowed the appeal and held that "the sale occurs at the time when the title to the subject of the sale is conveyed or transferred". (Chan v DainfordLtd at p537.) I accept the first defendant's submission that Chan's case is authority for the proposition that the thing being sold is determined at the date of conveyance, not the date of contract.
When that rule is applied to this contract there seems no doubt that this contract was a contract for the sale of all the proposed lots in the common property together comprising the parcel. The issue, then, is whether such a contract falls within the terms of Part V of the Act. Was the first defendant "a purchaser of a proposed lot in a scheme?" [Section 69(1)].
In its submissions the first defendant relied upon the rule of interpretation that the singular includes the plural (s10(c) Interpretation Act 1984). The first defendant suggested that this is simply a contract for the sale of a number of proposed lots and thus falls clearly within the terms of s69 of the Act. The rule that the single includes the plural may well equate a contract for the sale of a proposed lot with a contract for the sale of a number of proposed lots. If this were a contract for the sale of a number of proposed lots there is no doubt s69 of the Act would apply. But that is not the nature of this contract. In my opinion a contract for the sale of all the proposed lots including the common property is a contract of a different character. It is a contract for the sale of the parcel. The sale of the parcel takes place before the terms of s69 have any application. Section 69 applies when a lot or lots comprising a part of the parcel are sold.
Such an interpretation of s69 seems to me to be consistent with the intention of the legislature. Section 69 falls within Part V of the Act titled "Protection of Purchasers". It is readily apparent when the required notifiable information is considered that the legislature has enacted these provisions to protect consumers who are purchasers of strata titled lots or proposed lots and not to protect property developers who may develop and subdivide parcels of land.
This interpretation is also consistent with the provisions of s70 which place special duties on a vendor who sells a lot before the strata plan is registered. The Act imposes those special requirements in my opinion in order to protect the consumer/purchaser in that circumstance. Section 70 would serve no useful purpose if it were to be applied to a contract of the nature of this contract wherein one property developer undertakes to develop and sell a parcel of land capable of being registered as four strata titled lots to another developer.
For these reasons the first question is answered "no".

Question 2: Did the first defendant by its written notice to the plaintiff dated 15 December 1996 lawfully terminate the contract or did the first defendant thereby unlawfully repudiate the contract?

The answer to this question follows inevitably from the answer to Question 1.
Repudiation of a contract occurs when a party unjustifiably manifests unwillingness or inability to perform it. (Cheshire and Fifoot's Law of Contract: 6th Aust ed at p738).
An explicit statement by a party indicating unwillingness to perform the contract at all constitutes repudiation (Bowes v Chaleyer (1923) 32 CLR 159 at 169). In this case I consider the first defendant's Notice of Termination of the Contract dated 12 December 1996 was an explicit statement of its unwillingness to perform the contract at all. In the notice the first defendant relied upon s69D of the Act and, given my finding on question 1, the first defendant was not justified in doing that. Section 69D was not available to the first defendant. Therefore I am satisfied that the first defendant has repudiated the contract.
For these reasons question 2 is answered: "The first defendant by its written notice unlawfully repudiated the contract".