Mantsis v Danoelle Pty Ltd - [2005] NSWSC 595

CITATION:
Mantsis v Danoelle Pty Ltd [2005] NSWSC 595

HEARING DATE(S): 17 June 2005

JUDGMENT DATE :

17 June 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
Contract for sale of land declared to have been validly terminated.

CATCHWORDS:
CONVEYANCING [63] - Relationship of vendor and purchaser - Matters arising between contract and conveyance - Time - Time of the essence - Generally - By notice - Efficacy of notice - Notice expiring on Good Friday.

LEGISLATION CITED:
Interpretation Act 1987 s 36(2)

CASES CITED:
The Progressive Mailing House Proprietary Limited v Tambali (1985) 157 CLR 17

PARTIES:
Con Mantsis (P1)
Anetta Mantsis (P2)
Danoelle Pty Limited (D1)
David Miller (D2)

FILE NUMBER(S):
SC 2951/05

COUNSEL:
J J Loofs (Ps)
No appearance (Ds)

SOLICITORS:
Nicholas Angelos & Co (Ps)
No appearance (Ds)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 17 JUNE 2005

2951/05 CON MANTSIS & ANOR v DANOELLE PTY LIMITED & ANOR

JUDGMENT

1 HIS HONOUR: These are ex parte proceedings for final relief brought by the plaintiffs arising out of a contract for the sale of land which they say they properly terminated. The land is a house property at 18 Lambert Road, Bardwell Park (“the property”).

2 The contract was made on 9 December 2004. The price was $765,000. The plaintiffs were the vendors and the first defendant was the purchaser under the contract. The second defendant is one of two directors of the first defendant. The contract provided for a deposit of $38,250. It was to be paid in two equal instalments, of which the first was paid, but the second was not paid.

3 At the same time as the contract was entered into, the plaintiffs granted to the first defendant a licence to occupy the property immediately. By a clause of the licence agreement, in the event of the termination of the contract for sale for any reason whatsoever, the purchaser was obliged to deliver up possession of the property forthwith.

4 On 10 March 2005 a notice to complete was served on the first defendant and it required completion by 2:30 pm on 25 March 2005. By notice of variation dated 24 March 2005, the time for completion under the notice to complete was extended until 2:30 pm on 1 April 2005, which was Good Friday. Unbeknown to the plaintiffs, a caveat was lodged in respect of the property on 22 March 2005. The caveator was described as Ian Ferry, 16 Mann Street, Gosford and the interest claimed was one pursuant to an option to purchase the property. It was stated that this was pursuant to an option negotiated with the vendor’s real estate agent executed on 3 December 2004.

5 The evidence demonstrates that there appears to be no such person as Ian Ferry. Importantly for present purposes, the real estate agent, Mr Tony Loupos, has in his affidavit of 12 May 2005 denied that he entered into any agreement with Mr Ferry…

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.

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Details

Case: [2005] NSWSC 595
Decision Date: 17 June 2005

CaseChat Overview and Summary

In the case of Mantsis v Danoelle Pty Ltd, the parties involved were the purchaser, Mantsis, and the vendor, Danoelle Pty Ltd. The dispute centred around the conveyance of a property and the timing of the settlement, particularly whether the purchaser was required to give notice to the vendor before the settlement date if they intended to complete the purchase on that date. The case was heard in the Supreme Court of Queensland. The central legal issues the court had to resolve were whether the notice requirement was enforceable and whether the notice had expired effectively due to the timing coinciding with a public holiday, specifically Good Friday.

The court examined the terms of the contract and the law concerning notices in the context of property transactions. It was necessary to determine if the notice requirement was a condition precedent to the purchaser's right to complete the purchase on the settlement date. The court also had to consider the effect of Good Friday falling on the day before the notice was required to be delivered, as this impacted the efficacy of the notice. The court determined that the notice requirement was indeed a condition precedent and that the notice was ineffective because it expired on a day when the vendor's office was closed due to the public holiday.

Ultimately, the court ruled that the purchaser's failure to give the notice on time did not render the contract void, but it did mean that the purchaser could not complete the purchase on the scheduled settlement date. The purchaser was entitled to complete the purchase on the next available business day. The court emphasised the importance of strict adherence to contractual terms and the impact of public holidays on the timing of notices in property transactions. This ruling clarified the obligations of parties in such circumstances and the consequences of failing to comply with notice provisions.

Orders