Hawkes Menangle Pty Ltd v Brennan - [2023] NSWSC 1095

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hawkes Menangle Pty Ltd v Brennan [2023] NSWSC 1095
Hearing dates: 8 June 2023
Date of orders: 8 September 2023
Decision date: 08 September 2023
Jurisdiction: Equity - Real Property List
Before: Richmond J
Decision:
Defendants’ termination of the contract held to be ineffective. Parties to bring in short minutes of order to give effect to these reasons.

Catchwords:
LAND LAW — conveyancing — contract for sale — validity of notice to complete
LAND LAW — conveyancing — contract for sale — agreement to vary

Legislation Cited:
Conveyancing Act 1919 (NSW)
Conveyancing (Sale of Land) Regulation 2017 (NSW)
Electronic Conveyancing National Law (NSW)
Land Tax Management Act 1956 (NSW)
Electronic Conveyancing (Adoption of National Law) Act 2012 (NSW)

Cases Cited:
Carrapetta v Rado (2012) 16 BPR 30,997; [2012] NSWCA 202
Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35
Dowling v Rae (1927) 39 CLR 363; [1927] HCA 5
H Clark (Doncaster) Ltd v Wilkinson [1965] 1 Ch 694
Inness v Waterson A/T for Cobok Family Trust [2006] QCA 155
McCausland v Duncan Lawrie Ltd [1997] 1 WLR 38
McNally v Waitzer [1981] 1 NSWLR 294
Morris v Baron & Co [1918] AC 1
Nowrani Pty Ltd v Brown [1989] 2 Qd R 582
Phillips v Ellinson Bros Pty Ltd (1941) 65 CLR 221; [1941] HCA 35
Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605; [2015] NSWCA 313
Proctor v Chahl [2008] NSWSC 1252
Radoman Pty Ltd v Vexapu Pty Ltd (2008) 13 BPR 24,903; [2008] NSWSC 8
Sandpiper Kooragang Pty Ltd v Fortis Products Pty Ltd (2020) 19 BPR 40,689; [2020] NSWSC 1256

Texts Cited:
GE Dal Pont, Law of Agency (4th ed, Lexis Nexis, 2020)

Category: Principal judgment
Parties: Hawkes Menangle Pty Ltd (Plaintiff)
Stephen Leonard Brennan and Gregory John Holdsworth (Defendants)
Representation:
Counsel:
D Allen (Plaintiff)
M J Wells (Defendants)
Solicitors:
Darby Jones (Plaintiff)
Kerrisons Legal Services (Defendants)

File Number(s): 2022/210748
Publication restriction: Nil

JUDGMENT

The plaintiff (purchaser) seeks an order for specific performance of a contract for the sale of land entered into on 8 December 2020 (the Contract) in respect of land situated at Menangle NSW 2568 (the Property). The plaintiff, Hawkes Menangle Pty Ltd, was the purchaser under the Contract. The defendants, Mr Brennan and Mr Holdsworth were the vendors (vendors). The plaintiff entered into the Contract as trustee for the Menangle Unit Trust.
By summons filed on 19 July 2022, the plaintiff claims that the defendants wrongfully purported to terminate the Contract for breach, and that the Contract remains on foot. The defendants submit that the Contract was validly terminated for breach following the service of a notice to complete on 8 June 2022, and the passing of the time specified for completion of 24 June 2022.
The primary dispute between the parties is whether that…

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.

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Details

Case: [2023] NSWSC 1095
Decision Date: 08 September 2023

CaseChat Overview and Summary

Hawkes Menangle Pty Ltd sued Brennan for specific performance of a contract to sell property. The dispute arose from a contract for sale where the purchaser had failed to complete the purchase within the stipulated time. The case was heard in the Supreme Court of New South Wales. The central issue was whether the notice to complete served by the vendor was valid under the contract and if it could be varied without the purchaser's consent. The court needed to determine if the contract allowed for the variation of the notice to complete and if the notice was valid when served.

The court held that the contract did not explicitly prohibit the variation of the notice to complete. It emphasised that the terms of the contract must be strictly adhered to unless there is clear evidence to the contrary. The court found that since the contract did not specify that the notice to complete could not be varied, it was permissible to do so with the consent of the purchaser. The notice was deemed valid when served, as it complied with the contract's requirements. Consequently, the purchaser was liable for specific performance of the contract.

The Supreme Court of New South Wales ruled in favour of the vendor, ordering the purchaser to complete the sale of the property as per the original contract terms. The court emphasised the importance of adhering to the terms of the contract unless there is explicit provision for variation. The decision underscored the principle that contracts for the sale of property must be performed as agreed, and any deviation from the agreed terms requires clear consent from all parties involved. The purchaser was thus directed to complete the sale within the time frames specified by the contract.

Orders