K & K Real Estate Pty Ltd v Adellos Pty Ltd

K & K Real Estate Pty Ltd (the purchaser) sought specific performance of a contract for the sale of land against Adellos Pty Ltd (the vendor). The vendor had issued a notice to complete, but neither party attended for completion on the specified date. The purchaser appealed the decision of the primary judge.

The central legal issues before the Court of Appeal were whether the vendor's right to rely on the notice to complete had been waived, and whether the purchaser's solicitor had "intimated" to the vendor's solicitor that the vendor was dispensed from attending on the completion date. The court also considered the significance of the word "intimation" in relevant authorities and the requirements for establishing reliance on such an intimation.

The Court of Appeal held that for time to be considered no longer of the essence, there must be an intimation from one party to the other that they are dispensed from attending on the completion date. This intimation must be of such a nature that the other party relies on it. The court found that the negotiations that occurred did not amount to an agreement that time under the notice would not run, nor was there a clear intimation by the purchaser's solicitor that the vendor was dispensed from attending. The mere fact that the vendor subsequently resold the property at a profit was insufficient to justify a refund of the deposit.

The appeal was dismissed with costs.