Louinder v Leis

[1982] HCA 28

HIGH COURT OF AUSTRALIA

Gibbs C.J., Stephen, Mason, Wilson and Brennan JJ.

LOUINDER v. LEIS

(1982) 149 CLR 509

11 May 1982

Vendor and Purchaser

Vendor and Purchaser—Contract of sale—Time—Stipulation—Time not of the essence—Failure of purchaser to tender transfer to purchaser by specified date—Whether vendor thereby entitled to give notice to complete—Whether vendor may give notice when purchaser in breach though not guilty of unreasonable delay.

Decisions

May 11.
The following written judgments were delivered: -
GIBBS C.J. The facts of this case are set out in the judgment of Mason J. which I have had the advantage of reading. I agree with the conclusion reached by Mason J., and in general with his reasoning, but would state for myself briefly why I consider that the appeal should be dismissed. (at p511)

2. The contract for the sale of the land in question from the appellant to the respondent did not fix any date for completion, and did not contain any stipulation that time should be of the essence of the contract. However, by cl. 4, it was provided that within twenty-eight days from the delivery of the vendor's statement of title the purchaser should at his own expense tender to the vendor for execution the appropriate assurance of the property. The statement of title was delivered on 2 November 1979, but, on 8 February 1980, when the appellant gave to the respondent a notice to complete the contract, the respondent had not tendered a transfer for execution. However, at the hearing at first instance no reliance was placed on the failure of the respondent to tender a transfer. Before the Court of Appeal, the appellant sought to argue that the failure of the respondent to tender a transfer within the time allowed by the contract was a breach of contract which provided sufficient justification for the giving of the notice to complete. Since the facts concerning the failure to comply with cl. 4 were not examined at first instance, and since evidence could possibly have been given that the appellant had waived the non-compliance (as indeed the evidence suggests), thus preventing the appellant's argument from succeeding, the Court of Appeal was correct in holding that it was not open to the appellant to take this point for the first time on appeal. (at p512)

3. It is common ground that if it was not open to the appellant to rely on a breach by the respondent of cl. 4, the appellant was not entitled to give the notice requiring completion of the contract unless the respondent had been guilty of unreasonable delay. In the circumstances of the case, which Mason J. has set out, it is impossible to conclude that the delay on the part of the respondent was unreasonable. (at p512)

4. What I have said is enough to dispose of the case, but the parties have directed argument to the question whether, if the appellant had been able to establish that the respondent was in breach of…