Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Hong v Gui [2022] NSWCA 245 Hearing dates: 21 October 2022 Date of orders: 1 December 2022 Decision date: 01 December 2022 Before: Macfarlan JA at [1];
Simpson AJA at [2];
Basten AJA at [3].Decision: (1) Dismiss the appeal from the judgment of the Equity Division given on 12 April 2022 and orders 1-3 entered on 22 April 2022.
(2) Dismiss the appeal from the judgment given on 16 May 2022 and the order entered on 7 July 2022.
(3) Order that the appellant pay the respondent’s costs in this Court.
Catchwords: CONTRACTS – contract for sale of land – termination – wrongful termination –– whether repudiation – vendor giving notice to complete had not provided land tax certificate – whether reasonable recipient of notice would understand vendor’s conduct as refusal to perform – vendor’s conduct to be understood in context – vendor communicated about settlement and extended settlement date – purchaser failed to reply or take steps to prepare for settlement – vendor purportedly relied on contractual right of rescission – mistaken failure to provide land tax certificate
Legislation Cited: Land Tax Management Act 1956 (NSW), s 47
Cases Cited: Amaya v Estate Property Holdings Pty Ltd [2010] NSWSC 32
Amaya v Everest Property Holdings Pty Ltd [2010] NSWCA 315; 15 BPR 28,695
Carter v Mehmet [2021] NSWCA 286; 20 BPR 41,709
Deigan (as executrix for the estate of the late JB Lockrey) v Fussell [2019] NSWCA 299; 19 BPR 39,853
Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190
Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 WLR 277
Category: Principal judgment Parties: Lihong Hong (Appellant)
Ke Gui (Respondent)Representation: Counsel:
Solicitors:
Mr N Hutley SC / Mr H Altan (Appellant)
Mr A Harding SC / Mr H Fielder (Respondent)
CKSD Lawyers (Appellant)
Lawside Lawyers (Respondent)
File Number(s): 2022/00112467 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity – Real Property List
- Citation:
- Date of Decision:
- 12 April 2022; 16 May 2022
- Before:
- Black J
- File Number(s):
- 2020/310749
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 26 September 2019, the appellant, Ms Lihong Hong, entered into a contract to purchase two strata properties from the respondent, Mr Ke Gui. The contract provided for a deposit of 10% of which 5% was paid upon signing. The contract stipulated a settlement date of 26 May 2020. Settlement was to be effected electronically through a PEXA Workspace.
In January 2020, the vendor’s solicitors agreed to the request of the purchaser’s solicitors to postpone completion until 27 July 2020. From 11 June 2020, the vendor’s solicitors repeatedly contacted the purchaser’s solicitors to prepare for settlement, without obtaining receiving a response. The purchaser did not settle on 27 July. Later that day, the vendor’s solicitors sent an email to the purchaser’s solicitors…
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- AGLC
- Hong v Gui [2022] NSWCA 245
- Case
- [2022] NSWCA 245
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the vendor's conduct constituted a repudiation of the contract, thereby entitling the purchaser to terminate. Specifically, the court had to determine if the vendor's failure to provide a land tax certificate, coupled with a notice to complete, amounted to an indication that the vendor would not perform its contractual obligations, and whether a reasonable recipient would have understood it as such.
The Court of Appeal reasoned that the vendor's conduct must be assessed in its full context. While the vendor had mistakenly failed to provide the land tax certificate, it had also communicated with the purchaser regarding settlement and had extended the settlement date. The court found that the purchaser had not replied to these communications or taken steps to prepare for settlement. The vendor's subsequent reliance on a contractual right of rescission, in light of the purchaser's inaction and the mistaken omission of the land tax certificate, was not considered a repudiation. The court applied principles of contract law concerning repudiation and the interpretation of contractual notices.
The Court of Appeal dismissed the appeals from the judgments and orders of the Equity Division and ordered the appellant to pay the respondent's costs.
Orders
Orders of the court
(1) Dismiss the appeal from the judgment of the Equity Division given on 12 April 2022 and orders 1-3 entered on 22 April 2022.
(2) Dismiss the appeal from the judgment given on 16 May 2022 and the order entered on 7 July 2022.
(3) Order that the appellant pay the respondent’s costs in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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