Legal Research
Cases
Lavigne v Kumar

Lavigne v Kumar

Case [2020] NSWSC 1120 21 August 2020

Contract Formation

Breach of Contract

Repudiation & Termination

Rescission

Adverse Possession

Easements & Covenants

Mortgages & Security Interests

Property Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Lavigne v Kumar [2020] NSWSC 1120
Hearing dates: 20-22 July 2020
Date of orders: 21 August 2020
Decision date: 21 August 2020
Jurisdiction: Equity
Before: Darke J
Decision:
Contract for sale validly terminated by defendant. Plaintiffs’ claim for specific performance dismissed. Defendant not entitled to recover deposit. Defendant entitled to possession of property, payment of outstanding rent, and mesne profits.

Catchwords:
LAND LAW – contract for the sale of land – validity of Notice to Complete – plaintiffs enter into Option Deed under which defendant grants an option to purchase – plaintiffs take immediate possession of the property in accordance with the Option Deed – plaintiffs exercise the option several years later – parties exchange settlement sheets claiming various amounts in addition to amounts payable under contract for sale – defendant issues Notice to Complete – whether defendant in a position to issue Notice to Complete – whether defendant ready, willing and able to perform – whether defendant adopting an unequivocal stance concerning amounts due on completion – whether defendant required to provide Occupation Certificate – Notice to Complete held to be valid
LAND LAW – contract for the sale of land – termination of contract – where time of the essence for completion of contract – where defendant insisting upon payments at settlement pursuant to other contractual arrangements – where plaintiffs incorrectly maintain that defendant is required to provide Occupation Certificate prior to completion – completion does not occur – defendant terminates contract for sale – defendant claims entitled to terminate contract for plaintiffs’ repudiation or alternatively pursuant to cl 12.7 of Option Deed – held that neither party ready, willing and able to complete – held that conduct of both parties amounted to repudiation – defendant able to terminate on account of plaintiffs’ repudiation but not entitled to recover the deposit or sue for damages – no entitlement to terminate under cl 12.7 of Option Deed
LAND LAW – contract for the sale of land – rescission – defendant contends contract validly rescinded under cl 7 of standard form contract – where cl 7 precludes certain claims by purchaser – plaintiffs make claim for cost of replacement of roof – whether a claim made under cl 7 – defendant gives notice of intention to rescind – plaintiffs waive claim under contract but continue to assert claim otherwise – held that plaintiffs’ conduct viewed objectively does not show an intention to proceed under cl 7 – held that in any event claim was waived under cl 7 – held that waiver of claim under cl 7 does not amount to a waiver of claim at large – defendant not entitled to rescind
LAND LAW – residential tenancy agreements – held that tenancy conferred under the Option Deed is a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010 (NSW) – held that defendant gave notice of termination such that periodic tenancy was terminated – defendant entitled to mesne…

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.

Continue reading Lavigne v Kumar

Details

AGLC: Lavigne v Kumar [2020] NSWSC 1120
Case: [2020] NSWSC 1120
Decision Date: 21 August 2020

CaseChat Overview and Summary

The case of Lavigne v Kumar involved a dispute concerning the sale of land and the associated contractual obligations. The plaintiffs, Lavigne, entered into an Option Deed with the defendant, Kumar, granting them the option to purchase a property. Following the execution of the Option Deed, the plaintiffs took possession of the property. Several years later, they exercised the option to purchase the property. The parties exchanged settlement sheets claiming additional amounts beyond what was stipulated in the contract for the sale of land. Kumar issued a Notice to Complete, asserting that he was ready, willing, and able to complete the sale. The Lavignes contested the validity of the Notice to Complete, arguing that Kumar was not in a position to issue it and that he was not adopting an unequivocal stance concerning the amounts due on completion. They also contended that Kumar was required to provide an Occupation Certificate before completion.

The court examined whether Kumar was entitled to issue a valid Notice to Complete. It concluded that Kumar had the right to issue the Notice to Complete, as he was ready, willing, and able to perform his obligations under the contract. The court found that Kumar had unequivocally communicated his readiness to complete the sale, despite the disputes over the settlement amounts. Additionally, the court determined that Kumar was not required to provide an Occupation Certificate prior to completion, as such a requirement was not stipulated in the contract. Consequently, the Notice to Complete was held to be valid.

The court also addressed the issue of whether the contract could be terminated by Kumar due to the plaintiffs' conduct. It found that neither party was ready, willing, and able to complete the sale, and that the conduct of both parties amounted to a repudiation of the contract. As a result, Kumar was entitled to terminate the contract for the plaintiffs' repudiation. However, the court held that Kumar was not entitled to recover the deposit or sue for damages. Furthermore, Kumar was not entitled to terminate the contract under clause 12.7 of the Option Deed. The court also ruled on the rescission of the contract, finding that Kumar was not entitled to rescind the contract as the plaintiffs did not demonstrate an intention to proceed under the rescission clause, and their waiver of a specific claim did not amount to a waiver of all claims. Finally, the court concluded that the tenancy conferred under the Option Deed was a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010 (NSW), and Kumar was entitled to mesne profits as he had properly terminated the periodic tenancy.

Orders