CONTRACTS – Construction – Interpretation – where no time specified for the completion of the contract for the sale of land – whether contract void for uncertainty – implied reasonable time for completion of contract – no question of principle
CONTRACTS – Termination – whether breach by either party – whether repudiation of contract – whether acceptance of repudiatory conduct – no question of principle
LAND LAW – Conveyancing – Contract for sale – Termination – whether necessary for vendor to show readiness, willingness and ability to perform contract at time of termination – whether vendor ready, willing and able – question of principle
LAND LAW – Conveyancing – Contract for sale – Deposit – relief against forfeiture of deposit – where deposit is 13% – whether deposit is a penalty – whether deposit should be returned pursuant to Conveyancing Act 1919 (NSW), s 55(2A) – question of principle
[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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AGLC
Lewington v Dulyakarn [2025] NSWSC 635
Case
[2025] NSWSC 635
Decision Date
CaseChat Overview and Summary
The matter of Lewington v Dulyakarn involved a dispute over the sale of land where the contract did not specify a time for completion. The primary issue before the court was whether the contract was void for uncertainty due to the lack of a specified completion date. Additionally, the court needed to determine if there was an implied reasonable time for the completion of the contract, and whether the vendor was required to demonstrate readiness, willingness, and ability to perform at the time of termination. The court also examined whether either party had breached the contract and if there was any repudiation of the contract that the other party had accepted.
The court examined the contract to ascertain if it contained an implied reasonable time for completion. The court held that where the contract is silent on the completion date, a reasonable time for completion could be implied. This was not a question of principle, and the court found that an implied reasonable time existed in the given circumstances. The court also noted that the vendor was not required to demonstrate readiness, willingness, and ability to perform at the time of termination, provided that they were able to do so within the implied reasonable time. The court found no breach of contract or repudiation by either party, and that the contract could be terminated by either party within the implied reasonable time.
The court further examined whether the deposit paid was a penalty and thus should be returned to the purchaser under the Conveyancing Act 1919 (NSW), s 55(2A). The court found that the deposit, amounting to 13%, was not a penalty and could be retained by the vendor. The court determined that the deposit was a genuine pre-estimate of loss in the event of the purchaser's breach of contract, and therefore not subject to the provisions of s 55(2A).
The court made no orders regarding the deposit, as it found that the vendor was entitled to retain it. The court further found that the contract was not void for uncertainty and could be terminated within the implied reasonable time. The court dismissed the purchaser's claims and ordered the purchaser to pay the vendor's costs of the proceeding.