Empire Securities Pty Ltd v Miocevich - [2008] WASCA 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: EMPIRE SECURITIES PTY LTD -v- MIOCEVICH [2008] WASCA 52

CORAM: PULLIN JA
MILLER JA
EM HEENAN AJA

HEARD: 12 FEBRUARY 2008

DELIVERED : 4 MARCH 2008

FILE NO/S: CACV 148 of 2006

BETWEEN: EMPIRE SECURITIES PTY LTD
Appellant
AND
LEONARD STEVEN JAMES MIOCEVICH
MARGARET DENE MIOCEVICH
Respondents

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAVRIANOU DCJ
Citation  :EMPIRE SECURITIES PTY LTD v MIOCEVICH [2006] WADC 173
File No  :CIV 1892 of 2005

Catchwords:

Contract - Real property - Sale of land - Contract of sale providing for removal by vendors of a shed before settlement - Shed a fixture - Shed removed before settlement but concrete floor left in situ - Whether compliance with term of contract - Whether vendors entitled to interest under contract for delay by purchaser in settling - Whether vendors at all material times ready, willing and able to complete contract - Entitlement to interest

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr P G McGowan
Respondents : Ms W F Buckley

Solicitors:

Appellant: Hotchkin Hanly
Respondents : Metaxas & Hager

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

Birmingham Dudley & District Banking Co v Ross (1888) 38 Ch D 295
Cottee Dairy Products Pty Ltd v Minad Pty Ltd (1997) 8 BPR 15,611; [1998] ANZ ConvR 219
D'arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Empire Securities Pty Ltd v Miocevich [2004] WASC 118
Geita Sebea v Territory of Papua (1941) 67 CLR 544
Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1Ch 200
Hawkins v Farley [1997] 2 Qd R 361
Mancetter Developments Ltd v Garmanson Ltd [1986] 1 QB 1212
Meux v Jacobs (1875) LR 7 HL 481
Nelson v Walker (1910) 10 CLR 560
Palmer v Fletcher (1663) 1 Lev 122; 83 R 329
Poole's Case (1703) 1 Salk 368
Re De Falbe; Ward v Taylor [1901] 1Ch 523
Smith v City Petroleum Co Ltd [1940] 1 All ER 260
Wheeldon v Burrows (1879) 12 Ch D 31

PULLIN JA: EM Heenan AJA has set out the facts. I agree with his Honour that the reference to the colorbond shed was a reference to the removable components of the shed and not to the concrete slab or footings. The appellant has not revealed any error in the trial judge's reasons. As a result, both grounds of appeal must fail and I agree with EM Heenan AJA that the appeal must be dismissed.
MILLER JA: I have had the opportunity of reading in draft the reasons of EM Heenan AJA. I agree that the appeal should be dismissed for the reasons given by his Honour.
EM HEENAN AJA: This is an appeal from the judgment of the District Court of Western Australia entered on 27 October 2006 by which Stavrianou DCJ awarded the respondents $80,316.51 as interest for the late completion of a contract for the purchase of land and for other monies due under the contract. The appellant contends that its liability for interest should be reduced to the sum of $19,335.68 which, with the addition of other monies acknowledged to be due to the respondents, would have the effect of the judgment being reduced to $23,380.92 only.
By a contract dated 14 September 2002 the appellant agreed to purchase and the respondents agreed to sell all that piece of land being part of lot 1300 on plan 3314 situated at Gosnells for $667,000. The contract of sale was by a written offer and acceptance to which additional terms were annexed and which incorporated, so far as they were not varied by or inconsistent with the express terms of the contract, the Joint Form of General Conditions for the Sale of Land (2000 revision) (the 'general conditions'). The date for settlement specified by the contract was 14 March 2003 and, by cl 5(1) of the general conditions, if settlement were not effected on, or within three business days after, the specified settlement date, for any reason not attributable to the vendors, the purchaser became obliged to pay to the vendors on settlement interest at a prescribed rate on the balance of the purchase price and other monies then payable. The contract was conditional upon the grant of finance from a specified lender and was also conditional upon certain terms relating to approval for subdivision of a portion of the subject land. Added, in manuscript, to the terms of the offer and acceptance as an additional clause under the heading of 'Conditions' was the following term:
9.The vendor is to remove colorbond shed from the property prior to settlement.

The land the subject of the contract had been used by the vendors in the past for growing and harvesting passionfruit vines and incidental uses. The vendors had erected on the land a metal colorbond shed to house some of the equipment and stores associated with the vine growing activities. This was the 'colorbond shed' referred to in the term of the contract which has just been mentioned. The dimensions of the shed were 10 m x 8 m. The walls and roof of the shed were attached to metal supports which were, in turn, embedded in concrete footings laid in the earth upon which the shed stood. Shortly after the construction of this shed the vendors, or their workmen, laid a concrete floor inside the shed which reached to the interior foot of all the walls. This was not part of the structural supports for the shed but, nevertheless, the concrete floor ran to and abutted the footings upon which the structural members of the shed were erected.
For reasons which are not material the parties agreed that the contract date for settlement, namely 14 March 2003, should be extended to 17 June 2003 which became the new date for settlement.
The purchasers did not complete on 17 June 2003. Completion did not occur until 30 June 2004 (more than one year later) and then on terms which left in dispute the claim for interest for late settlement.
On 21 July 2003, that is after the extended date for settlement had passed, the solicitors for the purchaser wrote to the vendors' solicitor raising a series of claims and allegations including:
(a)an assertion that the contract of sale gave rise to a GST liability by the vendors and that, consequently, the vendors were obliged to provide to the purchaser a tax invoice showing the GST liability which would entitle the purchaser to claim an input tax credit for the amount of the GST liability;
(b)an assertion that the failure by the vendors to remove the floor slab which was alleged to be integral to the colorbond shed meant that the purchaser was not liable to pay interest for late settlement; and
(c)a claim by the purchaser for interest from 20 June 2003 due to the vendors' inability to complete on the agreed terms on that date.
This generated a response from the respondents' solicitors to the effect: that there was no GST supply involved in the contract of sale and that, accordingly, there was no obligation upon the vendors to provide the purchaser with a tax invoice entitling the appellant to claim an input tax credit; that the colorbond shed had been removed from the land before the date due for settlement and that the remaining floor slab was not an integral part of the shed; and that there was no basis upon which the purchaser could claim interest. The vendors themselves, by their solicitors, foreshadowed a claim for interest for late settlement.
The appellant, as purchaser, then commenced the present action seeking declarations to the effect that the purchase price payable under the contract included GST; that the GST liability was $60,636.36; and that the adjusted price of the supply (sale price) was therefore $606,363.63. The appellant sought a further declaration that the vendors were obliged to provide a tax invoice entitling the purchaser to an input tax credit in the amount of the alleged GST liability or, alternatively, a declaration for the adjustment (reduction) of the contract price to the 'price of supply'. The appellant also sought an order for specific performance and/or damages.
The statement of claim seeking this relief was filed on 3 December 2003. The respondents filed a defence admitting the terms of the contract of sale; pleading that the colorbond shed had been removed from the land prior to the due date for settlement; pleading that the term relating to the removal of the colorbond shed was a clause solely for their benefit which they could, and did, waive to the extent (which they denied) that it applied to the concrete floor slab; and denying that the transaction gave rise to any GST liability or obligation to provide a tax invoice entitling the purchaser to claim an input tax credit. In addition the respondents, the vendors, counterclaimed for damages for expenses incurred in relation to delays and other alleged breaches caused by the purchaser, outgoings due on the land after the due date for settlement and interest for late settlement. Although not expressly sought the counterclaim was capable of being treated as a claim by the vendors for specific performance and was treated on that basis.
Applications for summary judgment both for the dismissal of the purchaser's claim and for judgment on the vendors' counterclaim were made by the respondents and were determined by Master Sanderson. For reasons which the learned Master gave (Empire Securities Pty Ltd v Miocevich [2004] WASC 118) the learned Master ordered summary judgment dismissing the appellant's, (purchaser's) claim and also entering summary judgment for the vendors (respondents) on the counterclaim requiring specific performance of the contract. The terms of these judgments were embodied in orders made by the learned Master on 9 June 2004. However, in relation to the vendors' claim for interest for late settlement and for other monies due because of the delay in settlement the learned Master ordered that the plaintiff have leave to defend the counterclaim restricted to those issues and remitted those issues for trial to the District Court of Western Australia.
These issues were then heard before his Honour Judge Stavrianou in June 2006 and by the judgment now under appeal: Empire Securities Pty Ltd v Miocevich [2006] WADC 173, his Honour ordered that the purchaser should pay to the vendors interest as claimed for late settlement fixed in the amount of $80,316.51, together with further sums of $4,045.24 and $11,907.71 respectively for outgoings accruing in respect of the land after the due date for settlement and further interest for a later period to 1 July 2004. The total judgment amount was, therefore, $96,269.46 together with an order for the costs of the action.
His Honour reasoned that the vendors' claim to interest was dependent upon them being ready, willing and able to settle on the extended date fixed for completion and that their readiness in turn depended upon whether or not the vendors had satisfied the term in the contract of sale relating to the removal of the colorbond shed prior to settlement.
That term was consistently referred to by the parties and by his Honour as a 'condition' of the contract presumably because of its position at the end of a list of prescribed conditions in the offer and acceptance despite some possible ambiguity about that characterisation which might arise from an immediately preceding provision in the contract referring to this term and others as 'special clause(s) printed below this line as inserted by agreement between the vendor and purchaser'. No ground of appeal addressed the question of whether or not this term was, or was not, a condition nor were any submissions on that point raised in the appeal. It is, therefore, unnecessary to address this question except to observe that there appears to be scope for doubt about whether or not that is the proper characterisation of the term.
In treating the term as a special condition Stavrianou DCJ nevertheless made findings of fact which are not challenged, from which his Honour concluded that there had been no breach of that term. His Honour observed:
The slab was laid as a floor in the shed. The shed was erected on footings and the concrete slab was then poured up to the edges. To remove the shed it had to be cut away from the footings and from the slab. To remove the slab required that it be broken up, and would have been of no value when removed [50].
…
Whilst the concrete had been poured to the edges of the slab it was possible to remove the shed and leave the slab in situ, as in fact occurred. Removal of the slab required additional work to be done presumably at a cost. The defendants did not promise to remove the slab and thus leave that part of the land cleared. The only contractual promise made was to remove the 'colorbond shed' [55].
The special condition understood in the light of the surrounding circumstances and the purpose and object of the transaction meant that the defendants were not required to remove the slab. I find that, in removing the above ground section comprising the colorbond shed, they had complied with the special condition, and consequently were ready, willing and able to settle, as at the settlement date of the contract [56].
From these essential findings and conclusions his Honour decided that the respondents were entitled to succeed on their counterclaim, both for interest for late settlement and for additional costs accrued for outgoings associated with the ownership of the land to the eventual date of settlement, and ordered that judgment should be entered accordingly.
From that judgment on the counterclaim the appellant appeals on the following grounds:
1.The ground of appeal is that the District Court of Western Australia ('the Court') erred in law by construing the Respondents' contractual obligation to remove 'the colorbond shed prior to settlement' in special condition 9 of the contract between the parties as not requiring the removal of its floor, in that:
(1)the natural and ordinary meaning of 'shed' would include its floor;
(2)the Court excluded the floor from the meaning of 'shed' by having regard to the uncommunicated subjective intention of the Respondents despite (correctly) having found that it could not have regard to such evidence in construing the meaning of the 'colorbond shed';
(3)the Court had no regard to the evidence of the Appellant that it agreed to the inclusion of special condition 9 so that it need not incur the costs of uplifting the concrete floor and removing it from the site, thereby obtaining a benefit;
(4)the uncontradicted evidence of the parties was that the 'colorbond' structure was fixed to the concrete slab comprising the floor of the shed.
2.The Court should have found that:
(1)the natural and ordinary meaning of the 'shed' included the concrete floor;
(2)the terms of special condition 9 required the Respondents to remove the floor and notify the Appellant before claiming an entitlement to interest pursuant to condition 5(1) of the General Conditions;
(3)the Respondents removed the concrete floor in or around December 2003 and advised the Appellant thereof in or around March / April 2004;
(4)the Appellants were obliged to pay the Respondents interest at 12% p.a on the sum of $646,285.90 pursuant to condition 5(1) as and from the date they were advised by the Respondents that they had removed the concrete floor (March / April 2004) to 30 June 2004.
In support of those grounds the appellant has submitted that the natural and ordinary meaning of the term 'shed' includes its footings and floor and is not restricted, on any reasonable interpretation, to its walls and roof. It was further submitted that, for this particular shed, the floor was an integral part because of the need to keep equipment, fertilisers, packing boxes and other equipment within it - implying that this shed needed to be protected from the elements and to be waterproof.
It was also submitted that, although the learned trial Judge rejected, as irrelevant, the subjective reasons which led the vendors to stipulate for the insertion of this term in the contract, and also rejected the plea that the term provided only a benefit for the vendors exclusively which they could, and did, waive (to the extent that, contrary to their primary position, it provided for the removal of the concrete floor) the learned trial judge must, imperceptibly have been erroneously influenced by those considerations in reaching the conclusion which his Honour did. The appellant also contends, contrary to the evidence and the findings, that the concrete slab was the foundation for the shed and that the colorbond part of the shed was attached to the concrete (meaning the slab rather than to the original footings) and that the slab would have been an integral part of the footings. This led to the contention that the shed was one structure constituted by its footings, floor, walls and roof.
The respondents, by contrast, submitted that the learned trial judge must have concluded that the expression 'colorbond shed' did not have any precise natural ordinary meaning but was a descriptive expression which needed to be construed in the context of the background. By counsel they submitted that the shed had been erected first and could have been used even without the floor. They further submitted that, if the learned trial judge's construction of the effect of cl 9 was incorrect it would not automatically result in the vendors being regarded as unwilling to perform the contract pursuant to its tenor (DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423, 429) and that in this case all the indications were that the vendors always remained ready, willing and able to perform the contract according to its proper construction. They had filed a notice of contention to support those submissions.
This notice of contention can be disposed of very shortly. There was no issue at the trial over whether or not the vendors were ready, willing and able to perform the contract according to its proper construction. No such issue could have arisen unless the purchaser had contended that the vendors had repudiated the contract by refusing to perform otherwise than according to its terms and the purchaser was treating that repudiation as a breach allowing it to terminate the contract and be relieved of its obligations thereunder. A conspicuous feature of this litigation is that neither party was contending that the contract of sale had been terminated as both the purchaser and the vendors were each, from different perspectives, seeking specific performance for its enforcement. The doctrine in DTR Nominees Pty Ltd v Mona Homes Pty Ltd therefore has no application to the issues which were in contest.
If for any reason attributable to the vendors, settlement did not proceed on the specified date then the vendors were not entitled to interest under general condition 5. If they were mistaken in their understanding of their obligation to remove the concrete slab, and had not removed it prior to settlement and this was the reason why the purchaser would not settle then the delay in settlement would have been attributable to the vendors and they would have been disentitled to interest for late settlement.
The central point in the issues tried before Stavrianou DCJ, and reagitated on this appeal, however, was whether or not, in the setting of this contract, the reference to the colorbond shed included the concrete floor. No doubt there are some sheds for which a specially constructed floor may be essential, perhaps for example: an explosives shed; a grain shed; and some forms of machinery sheds. Equally, however, there are undoubtedly a number of sheds for which special flooring would not usually be regarded as essential such as, for example, a cow shed, a wood shed, and some varieties of garden sheds. The issue is essentially one which needs to be decided as a matter of fact having regard to the particulars of the individual case. In this instance the learned trial judge correctly noted that this colorbond shed had been constructed originally without a concrete slab floor and that the concrete floor had been laid later (but not much later). It was therefore distinguishable from the rest of the structure. Furthermore, having regard to the manner in which the colorbond shed could be, and was, detached from its original supporting footings, his Honour concluded that, in the context of this contract, the reference to the colorbond shed was to its removable components, that is essentially, the above ground structure and not to the concrete slab or the residual footings.

In my respectful opinion that was a conclusion which was open to his Honour on the evidence before him and one which has not been shown to be wrong. On the basis of the evidence I consider further, with respect, that his Honour's conclusion was correct and that none of the grounds of appeal which challenge his Honour's finding of fact or the conclusions which follow has been made out.
Simply because the concrete floor is left behind after the shed has been removed does not compel any different conclusion. Not everything in the shed forms part of the shed. If, for example, there had been a well or a bore descending from the floor of the shed into the earth below, one would not be inclined to treat the well or the bore as part of the shed or to construe an obligation to remove the shed so as to include an obligation to remove or to fill in the well or the bore, notwithstanding that the purchaser's subsequent proposed use of the land may render those steps essential. This illustration, although removed from the facts of this case and the arguments developed on either side, is nevertheless sufficient to show that the essential point is to determine what is comprehended by the words 'the colorbond shed' within the context of the special term of the contract in its overall setting. As already observed I agree, with respect, with the construction placed on the meaning of the item, the colorbond shed, in this regard adopted by the learned trial judge.
The same result is reached by identifying the legal significance of this special term in the contract as a whole.
There can be no doubt that, at the time of the agreement for sale, this shed, fixed as it was to concrete supports buried in the ground, although detachable, was a fixture and part of the realty: Geita Sebea v Territory of Papua (1941) 67 CLR 544 and Hawkins v Farley [1997] 2 Qd R 361. That a fixture, subject to removal by the tenant after severance, will become the absolute property of the owner if the right is not exercised before the expiration of the term, or within any further term which in exceptional circumstances may be available to the tenant is confirmed by a long line of authority: Poole's Case (1703) 1 Salk 368; Meux v Jacobs (1875) LR 7 HL 481, 490; and Smith v City Petroleum Co Ltd [1940] 1 All ER 260. Obviously enough the right of severance in such cases is to allow the party severing the fixture to take advantage of the use or value of the chattel once severed. If severance would involve the destruction of the chattel that would be pointless and there would be no reason to attempt to do so. Accordingly, in the absence of agreement to the contrary between the vendors and any purchaser of the land the ownership of this fixture would pass to the purchaser by the sale. However, in such a situation it would be open to any vendor, and to these vendors, to stipulate in the agreement for sale that they had a right to sever the particular fixture from the land prior to completion and to remove the fixture for their own uses. In that case the right of severance could be exercised up until the date of completion, or any other date specified or agreed by the parties, and the property in the chattel, once severed from the land, would be retained by the vendors.
Such a right of severance, in the absence of agreement to the contrary should be exercised before the date for settlement or yielding up possession. If not so exercised it will lapse and the fixture will remain permanently part of the realty: D'arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317, 321‑ 323 (Young J) and Cottee Dairy Products Pty Ltd v Minad Pty Ltd (1997) 8 BPR 15,611; [1998] ANZ ConvR 219 [12] ‑ [13] (McLellan CJ in Eq). Admittedly those cases dealt with rights of tenants to remove tenants' fixtures from leasehold premises at the termination of the lease or other right of occupation and derive their origin from considerations which are not normally present in an ordinary sale of land between a vendor and a purchaser. Yet, in my view, if a vendor expressly reserves in the agreement for sale the right to sever certain fixtures which otherwise form part of the realty, the obligations then accruing have similarities, at least in relation to their duration and in the consequences of failure to exercise the rights within the time specified, to the position of a tenant failing to exercise a right to remove tenant's fixtures at the expiration of its term.
These considerations have some significance for the present case because, obviously enough, the severance of the walls and structure of the colorbond shed had a utility because those items, once severed and dismantled could be transported, reassembled and used elsewhere. That could not be said of the concrete floor which had been left behind. It could not be removed without destruction and if so removed could not be used to advantage elsewhere. This suggests that, had it been a matter for close examination, it is unlikely that the vendors would have sought to reserve a right to sever the concrete pad which had been embedded in the earth and could be of no possible use because it would be destroyed in the process. This strongly suggests that the right of severance given by the special term in this contract would not ordinarily be expected to include the concrete pad. That at least seems to have been borne out by the conduct of the vendors when dismantling and removing the super‑structure of the shed and that would also be consistent with the legal effect of a term such as cl 9 now under consideration.
That leads to a consideration of those cases in which a person, entitled to sever a fixture from realty and take it away, has done so, but has left the realty in a damaged or impaired condition by reason of the removal. Again the cases on this subject deal principally with severance by former tenants or lessees and, occasionally, by tenants for life or their representatives after the expiration of the life tenancy. Re De Falbe; Ward v Taylor [1901] 1Ch 523 is a case where a tenant for life fixed to the walls of house certain valuable chattels, tapestries, to such a degree that they became fixtures but in respect of which the life tenant had a right to remove them which was also exercisable by his executor after his death. The process of removal which was undertaken left the walls damaged and it was held that the executor should pay the expenses of making good the damage done. Similarly in Mancetter Developments Ltd v Garmanson Ltd [1986] 1 QB 1212 a tenant of industrial premises exercised the right to remove tenant's or trade fixtures from the premises at the termination of the lease. The premises consisted of a factory in which pipes and extractor fans had been run through internal and external walls and, once removed, left large holes or apertures in those walls. The decision of the Court of Appeal was that, in such circumstances, the removal of tenant's fixtures without making good any damage, being in excess of the right to remove such fixtures, involved the tort of waste giving rise to a liability on the person removing the fixtures to the extent of the cost of making good the premises.
In my view it follows from these authorities that if a person, entitled to sever fixtures from realty does so but, in the result, leaves the premises damaged or in need of being made good to overcome the consequences of the severance, the person doing so may be liable in tort or in contract for the cost of restoration or making good. When this happens in a situation of landlord and tenant the tenant will be liable for the tort of waste. However, in a situation such as the present where a vendor is exercising a right reserved by the contract to remove a fixture and does so leaving the premises damaged and in need of restoration it seems that the vendor would be liable for breach of an implied term requiring him to exercise the right of severance without causing damage to the land from which the chattel was severed.
Perhaps, the vendor may also be liable under the principle that he or she is not entitled to derogate from the grant of the rights which are conferred on the purchaser by the agreement for sale - by analogy with the principle of non‑derogation from grant. This doctrine 'merely embodies in a legal maximum a rule of common honesty' - Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1Ch 200, 225. See also Nelson v Walker (1910) 10 CLR 560; Palmer v Fletcher (1663) 1 Lev 122; 83 R 329; and Birmingham Dudley & District Banking Co v Ross (1888) 38 Ch D 295, 312 which show that the doctrine is not simply confined to the area of landlord and tenant. While these authorities deal with instances of express grants such as leases or general law conveyances, sometimes resulting in a species of easement to avoid derogation from the benefit of the grant contemplated, as appears from the rule in Wheeldon v Burrows (1879) 12 Ch D 31, the principle is of wider operation and can operate by analogy in other fields. One way of giving effect to the doctrine in the present instance would be to treat the right of severance conferred by special cl 9 of this contract as implying a derivative term that, in exercising the right of severance, the vendors must repair damage caused by the removal of the fixture to the extent necessary to leave the premises in a reasonable condition - but that is no more than is required of any person exercising a right of severance of a fixture in similar circumstances: Mancetter Developments Ltd v Garmanson Ltd.
Whichever of the foregoing analogies one adopts, the choice leads to the one conclusion that cl 9 of this contract is not to be construed as imposing an obligation on the vendors to remove every fragment of the former shed including auxiliary features such as this concrete floor or, had they existed, plumbing, sewerage or electrical connections. In my view the term, whether a condition or, more probably in reality a power, does no more than give a right to the vendors to sever a fixture from the realty and to do so in a manner which permits the severed fixture to be used to advantage elsewhere. It does not require the removal of features such as the concrete floor which would have no independent utility and which would be destroyed if that were to be attempted. In my view this power nevertheless imposes an obligation on the vendors to sever in a manner which leaves the land in a reasonable condition and without damage and which would allow the purchaser to maintain a claim for damages had there been a breach of that obligation. However, in this case it was never alleged, and it would be very difficult to see on the facts disclosed how it could be maintained, that the concrete pad left behind did not leave the land in a reasonable condition or resulted in it being damaged.
In my view the vendors had the right to sever the walls, roof and other super‑structure of this shed from this land before settlement. They did so and at the time when settlement was due, on 17 June 2003, they were ready, willing and able to complete. This provides the ground for the award of interest which the learned trial judge made in favour of the respondents and, in my respectful view, his Honour was correct in this conclusion.
I would dismiss this appeal.