Jorty Pty Limited v Enviro Energy (Australia) Pty Limited

[2012] NSWSC 1653

Supreme Court

New South Wales

Medium Neutral Citation:	Jorty Pty Limited v Enviro Energy (Australia) Pty Limited [2012] NSWSC 1653
Hearing dates:	19 December 2012
Decision date:	19 December 2012
Jurisdiction:	Equity Division
Before:	Brereton J
Decision:	Application to extend caveat dismissed
Category:	Interlocutory applications
Parties:	Jorty Pty Limited - Plaintiff Enviro Energy (Australia) Pty Limited - First Defendant Perpetual Trustee Company Limited - Second Defendant
Representation:	Counsel: JP Redmond - Plaintiff D Gasic (solicitor) - Defendants Solicitors: Edmond Khoury Solicitors - Plaintiff Norton Rose Australia - Defendants
File Number(s):	2012/ 392017

Judgment (ex tempore)

1. HIS HONOUR: By summons filed on 18 December 2012, the plaintiff Jorty Pty Limited claims an order extending the operation of caveat AH381736 in respect of the land at xxxx xxxxxxx xxxx, Cringila, in the State of New South Wales. The caveat claims an interest described as follows:

Equitable interest as seller by way of contract for sale granted by the mortgagee who exercising power of sale to the purchaser.

1. This interest is claimed pursuant to a contract for sale dated 16 April 2012, between Jorty Pty Limited as purchaser, and the second defendant Perpetual Trustee Company Limited, as mortgagee exercising its power of sale under the mortgage, as vendor. The first defendant is the registered proprietor Enviro Energy (Australia) Pty Limited.

1. Although the nature of the estate is described in a manner which is, to say the least, confusing, I am prepared in the light of the description of the estate or interest claimed in schedule 1 of the caveat as a whole to treat it as a claim to an interest as purchaser, as distinct from as seller. That interest is said to arise under the contract for sale dated 16 April 2012 to which I have referred.

1. The defendant vendor submits that the contract has been validly terminated, pursuant to notice dated 14 November 2012, for default in the observance of an essential obligation under the contract, because the plaintiff did not complete the contract in accordance with a notice to complete served on 18 October 2012. There appears to be no dispute that such notice to complete was given, and was not complied with.

1. The plaintiff purchaser argues that the vendor was not entitled to give such notice, or, having given it, was not entitled to insist on completion because a canopy constructed on the property, though DA approved in 2003, was erected without a construction certificate, and accordingly was liable either to a demolition order, or at least to a requirement for a new development application and approval.

1. However, the contract for sale contained the following relevant provisions:

5 Requisitions

If the purchaser is or becomes entitled to make a requisition, the purchaser can make it only by serving it

5.1 if it arises out of this contract or it is a general question about the property or title - within 21 days after the contract date;

5.2 if it arises out of anything served by the vendor - within 21 days after the later of the contract date and that service; and

5.3 in any other case - within a reasonable time.

1. The purchaser first raised the issue of the canopy with the vendor by letter dated 29 October 2012. In that respect, it will be observed that in this case the relevant requisition was made long in excess of 21 days after the time for requisitions.

1. It seems to me that the present objection also falls within the territory covered by special condition 37.2(6):

The purchaser must not make any requisition or claim, delay completion of, or rescind or terminate this contract because of anything in connection with: ...

(6) the zoning and planning controls and restrictions applying to the property and the use to which the property may be put and the development of the property (including all approvals, permits and consents concerning the development or use of the property and the conditions of them);...

1. In addition, special condition 46, in respect of there being no survey report; special condition 47, in respect of there being no building certificate, and special condition 50.2(1), which provides that the purchaser is not entitled to delay completion, et cetera, or raise any requisition in relation to any requirement of any law or of any authority attaching conditions to development of the property; all pose additional obstacles to the purchaser's reliance on the existence of the canopy.

1. In those circumstances, it is not apparent to me on the evidence presently before the Court how a claim that the contract has not been validly terminated can be said to be seriously arguable. Accordingly, I am not satisfied that the caveat has substance, and I decline to extend it.

1. I note that the summons is otherwise adjourned to 29 January 2013, at 9am before the Registrar in Equity.

1. I order that the plaintiff pay the defendants' costs of the interlocutory application.

**********

Decision last updated: 23 May 2013