McFarlane v Reffold (No 2) - [2011] SADC 129

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MCFARLANE v REFFOLD (No 2)
[2011] SADC 129
Judgment of His Honour Judge Stretton
24 August 2011
CONVEYANCING - BREACH OF CONTRACT FOR SALE AND REMEDIES - PURCHASER'S REMEDIES - OTHER MATTERS
The plaintiff claimed financial loss and disappointment for breach of a contract to sell him land on the edge of the Andamooka township. He wanted the land for several reasons including access to adjacent opal fields. The contract contained a warranty that all improvements had the necessary approvals. A septic tank on the land had not been approved. He sent a fax purporting to be a default notice to put off settlement, and the defendant claimed default interest per the contract on the new settlement date. The plaintiff would not pay the interest so the defendant did not settle and terminated the contract.
Held: The defendant did breach the warranty insofar as the septic system had not been approved. The warranty was however not an essential term of the contract and did not justify the plaintiff refusing to settle or defer the settlement date. The plaintiff’s fax did not amount to a valid default notice but did amount to a refusal to settle on the agreed date. This constituted a breach of the contract entitling the defendant to charge interest at the second settlement date. When the plaintiff refused to pay that interest the defendant was entitled to refuse to settle and terminate the contract, which he did.
The defendant did not breach the contract by not selling the property. Therefore he is not liable to the plaintiff.
The plaintiff's claim is dismissed.
Public and Environmental Health Act 1987 s 4, referred to.
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 ; Associated Newspapers Ltd v Bancks [1955] HCA 24; DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; Baltic Shipping Company v Dillon [1993] HCA 4, considered.

MCFARLANE v REFFOLD (No 2)
[2011] SADC 129

The plaintiff Brian McFarlane is an opal miner. He contracted with the defendant Danny Reffold to buy a house and land located on the edge of the Andamooka town boundary. He wanted the property because it was nicely oriented, had the potential for subdivision and would give better access to an adjacent opal field.
At some stage Mr McFarlane noticed that a septic system had been installed without required approvals but that the contract of sale warranted that all works on the land had the necessary approvals. He tried to renegotiate the price but Mr Reffold said he was selling the property “as is”.
Mr McFarlane therefore sent a fax to their conveyancer nominating a later settlement date and saying that he had incurred costs and delay. Mr Reffold took that as a refusal to settle and gave Mr McFarlane notice to settle on a new date and claimed default interest under the contract. On the new date Mr McFarlane refused to pay the interest and so the contract did not settle. By this stage Mr Reffold was upset and annoyed with Mr McFarlane so he terminated the contract and didn’t sell the property to him or anyone else.
Mr McFarlane now can’t afford to buy the property and is not seeking enforcement of the sale. He does however claim that Mr McFarlane wasn’t entitled to refuse to sell him the property at the time, and that he has suffered both financial loss and disappointment from not getting the property.
The issues
The issues in the case can be summarised briefly.
Firstly, if the septic system had been installed without the required approvals did that entitle Mr McFarlane to defer the first settlement and if so, did Mr McFarlane’s fax validly defer the first settlement?
Was Mr McFarlane’s failure to settle on the first occasion a breach of contract entitling Mr Reffold to charge default interest pending the second settlement date, in turn entitling him to refuse to sell the property when Mr McFarlane would not pay default interest?
Finally, if Mr Reffold did breach the contract by not selling the property has Mr McFarlane proven any financial loss or “disappointment”.
Much therefore depends on the contractual warranty Mr Reffold initially gave Mr McFarlane.
The warranty given by Mr Reffold
Mr Reffold warranted by clause 17 of the contract that no improvements had been carried out on the land without all necessary consents and approvals having been obtained.
There was some dispute at trial about whether Mr McFarlane became aware of the septic system issue before or after the contract was signed[1], and whether or not Mr Reffold made any representations that the system had been approved. It is therefore relevant to note that Mr McFarlane agreed per clause 12 of the contract that he had not been induced to enter the contract by, nor relied on, any statement or representation by Mr Reffold about the property. He agreed that he relied exclusively on his own investigations, the Section 7 statement from the purchaser, and the express warranties in the agreement.
[1] The contract was dated 7 December 2007, with a designated settlement date of 11 February 2008.
Accordingly the only relevant warranty in this case is contained in section 17 of the contract.
Had the septic system been installed without the required approvals?
Counsel for Mr Reffold argued that Mr McFarlane had not proven that the septic system had been installed without approval, primarily on the basis that the development approval for the property had already approved the septic system.[2]
[2] Defendant’s address at transcript p 444.
Mr Reffold gave evidence that he acquired the property in what would have been around 2006-2007. He then applied for permission to move a transportable house onto the block. On 5 February 2007 he was given permission to do so by the Development Assessment Commission.[3] It was a condition of that approval that a waste control system be installed, operated and maintained to the satisfaction of the Department of Human Services and that approval be obtained prior to the commencement of any building works on site. Indeed it is an offence to install a waste control system except as approved.[4]
[3] See Exhibit P16 and the transcript pp 358 et seq.
[4] Public and Environmental Health (Waste Control) Regulations 1995, tendered as P23
Mr Martin, an Environmental Health Officer with the department was called. He said that if a person wanted approval to install a wastewater management system they had to lodge a wastewater application with his office, and that no such application had been received.[5]
[5] Transcript p 148.
Mr Reffold did not apply for any approval but he retained a handyman to install a system. That was Mr Mata. Mr Mata gave evidence that he installed a septic tank at Mr Reffold’s direction.[6] A septic tank is a waste control system.[7] There is no suggestion that Mr Mata sought or received approval.
[6] Transcript pp 35-37.
[7] Public and Environmental Health Act 1987, per section 4.
Mr Reffold’s septic tank then came to the department’s attention. Mr Martin gave evidence that the wastewater management system comprised by Mr Reffold’s septic tank had not been approved and the installation was not compliant with the department’s standards.[8] Departmental correspondence confirmed this.[9]
[8] Transcript pp 149-151.
[9] Exhibits P14 and P15.
It is plain therefore that Mr Reffold installed a septic system without approvals required pursuant to the Public and Environmental Health legislation and regulations, and required by the conditions of his development approval.[10]
[10] It is common ground that Mr McFarlane and Mr Reffold discussed this. There is some dispute as to when they did so and what was said. Mr McFarlane says he was concerned about whether it had been approved but that prior to signing the contract Mr Reffold told him that it had been approved. After signing the contract he then investigated and came to the view that the septic was non-compliant with requirements, so he spoke to Mr Reffold again. After various further communications he said that Mr Reffold’s position ultimately was that he was selling the land as is, and that, in effect, Mr McFarlane could take it or leave it. Mr Reffold told the court that he had been up front with Mr McFarlane about the septic system well before the contract was signed, telling him he was selling the property “as is”. In the final analysis it is unnecessary to resolve those factual issues as they have no legal significance. There is no claim for loss occasioned by misrepresentation or misleading or deceptive conduct. The claim is entirely contractual, and the contract specifically excludes reliance on any vendor representations. Hence any representations, if made, are irrelevant to the claim.
Was the unapproved septic system a breach of warranty?
I find that the approval of a septic system required as a condition of Mr Reffold’s development approval and by the Public and Environmental Health legislative scheme is precisely the kind of approval that is covered by clause 17 of the contract.
Mr Reffold installed his septic system without any approval. He was therefore in breach of the contractual warranty he gave Mr McFarlane that he had not carried out any improvements without the required approvals.
Did the breach of warranty entitle Mr McFarlane to serve a “purchaser’s notice” and defer the first settlement date?
Clause 22 of the contract provided that if Mr Reffold:
Makes default in the observance or performance of any term or condition contained in this agreement to be observed or performed by the vendor at or before settlement, the purchaser may give to the vendor notice in writing (in this clause called “the purchaser’s notice”) requiring the vendor to remedy the default within the period of five business days after the service of the notice or such longer period as specified in the notice.
In such event, clause 22 also provided that the purchaser could terminate if the default was not remedied, or could appoint a new time for settlement or could postpone the settlement until the breach is remedied.
If the clause 17 warranty constituted a term or condition to be observed or performed by the vendor at or before settlement, then Mr Reffold would be entitled to postpone settlement by serving a valid “purchaser’s notice”.
So does clause 17 require the vendor to “perform” anything at or prior to settlement? Clause 17 does not seem require the vendor to take any action at all. It does not require the vendor to apply for any approvals or demolish anything that has been constructed without approval. It is not a precondition to settlement. It simply warrants that while the vendor has owned the property no improvements have been carried out without all necessary consents or improvements having been obtained, nor to the best of his knowledge were they prior to owning it. It does not require the vendor to do anything. It merely warrants an existing state of affairs. It promises that any improvements on the land are approved improvements. Accordingly it is not a term or condition requiring that the vendor do anything or that the vendor is required to “perform” at or prior to settlement.
The final question is whether clause 17 requires the vendor to “observe” anything at or prior to settlement. Relevantly the Oxford Online Dictionary[11] defines “observe” in this context to mean:
·Fulfil or comply with (a social, legal, ethical or religious obligation); a tribunal must observe the principles of natural justice
·Maintain (silence) in compliance with a rule or custom, or temporarily as a mark of respect; a minute’s silence will be observed
·Perform or take part in (a rite or ceremony); relations gather to observe the funeral rites
·Celebrate or acknowledge (an anniversary); they observed the one year anniversary of the flood
[11] oxforddictionaries.com
As it sits in tandem with the requirement to perform, in my view it means to observe in the sense of compliance. Accordingly the breach of a term that requires compliance with a legal obligation at or before settlement will also fall within clause 22.
So does clause 17 require compliance with a legal obligation at or before settlement? Whilst clause 17 warrants that all improvements were carried out with the necessary consents and approvals, clause 17 does not require that all improvements must have all necessary consents and approvals at or before settlement. It does not require that anything be observed at or before settlement, rather it warrants that consents and approvals were obtained for past improvements.
The plain emphasis of clause 22 is to allow a purchaser to give notice and postpone settlement where the vendor has not done something that the contract requires them to do or observe at or prior to settlement. Whilst it is not completely free from doubt, in my view clause 17 does not require the vendor to “observe” anything at or prior to settlement.
For these reasons the breach of warranty was not a vendor’s default within the meaning of clause 22. Accordingly Mr McFarlane was not entitled to defer the settlement date pursuant to that section
Mr McFarlane’s counsel also argued that the clause 17 warranty was an essential term or condition of the contract and for that reason would entitle Mr McFarlane to utilise the default provisions of clause 22 if it was breached. As discussed, even if clause 17 was an essential term or condition, it did not require something to be done or observed by or at settlement as required by section 22, and hence did not activate clause 22. Nor does clause 22 provide that the breach of an essential term or condition entitles the purchaser to serve a purchaser’s notice.
If it was an essential term or condition, two other possible issues arise.
Firstly, the breach of an essential term or condition will entitle the other party to terminate the contract. If clause 17 which I have found was breached constituted an essential term or condition Mr Reffold could have terminated the contract. He did not take up that option.
Secondly, counsel for Mr McFarlane observes that Mr Reffold was only entitled to charge interest subsequent to the first settlement date if Mr Reffold was:
…not in default in the observance or performance of any of the terms and conditions contained in this agreement to be performed by the vendor…
If therefore section 17 was a term or condition to be performed by the vendor, which Mr Reffold breached by breaching the warranty he gave per that section, then Mr Reffold was not entitled to charge interest and accordingly was not entitled to refuse to settle when it was not proffered at settlement.
The contract does not say that clause 17 is an essential term, nor is the clause a condition precedent to the performance of the contract. Notwithstanding this, the law will still regard it as an essential term if the law properly characterises it as essential. It will do so where it appears from the contract itself that the promise made by the clause is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or substantial performance of the promise, and that this ought to have been apparent to the promisor[12].
[12] Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 per Jordan CJ at 642, Associated Newspapers Ltd v Bancks [1955] HCA 24, DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 per Stephen CJ, Mason and Jacobs JJ at 431.
It is clear that the clause 17 warranty that Mr McFarlane gave Mr Reffold only had relatively minor importance. It involved relatively minor development on the land, which Mr McFarlane planned to develop and sell a significant proportion of anyway. The portion of the land he planned to retain was primarily important to him by virtue of its proximity to an opal field he planned to mine and the easy and direct access it would provide for Mr McFarlane’s vehicles and equipment. Warranties as to approvals for the existing developments on the land were of relatively minor concern to him. Indeed this is supported by subsequent events. When Mr McFarlane found out that approvals had not been obtained for the septic system he did not want to get out of the contract, rather he sought to negotiate a modest reduction in the purchase price.
In all the circumstances I find that section 17 was not an essential term or condition of the contract, nor was it a “term or condition of the contract to be performed by the vendor” the breach of which would disentitle Mr Reffold to charge interest.
Did Mr McFarlane’s fax validly defer the first settlement?
At some stage prior to settlement Mr McFarlane became aware that the septic system had not been approved and was not fully compliant with the regulations. He attempted to negotiate with Mr Reffold to reduce the price on that account, without success.
As a result, on 8 February 2008 he sent a fax to the conveyancer that he intended to be a purchaser’s notice of default pursuant to clause 22 of the contract.
The contract required settlement on 11 February 2008[13].
[13] Per clause 7 and the schedule to the contract.
Both parties were using the same conveyancer, Schreiber Conveyancing Pty Ltd.
As above discussed, the breach of warranty did not amount to the failure by Mr Reffold to observe or perform a term or condition at or before settlement.
Under the vendor default provisions of the contract, that was a precondition for Mr McFarlane to be able to issue a default notice deferring settlement. As that precondition had not occurred, Mr McFarlane was not entitled to issue a default notice and any notice he did accordingly issue would not be effective.
In any event, the fax he sent fell far short of amounting to an effective “purchaser’s notice” of default to Mr Reffold:
Due to the vendors (sic) reluctance to negotiate in any way on the subject of the waist (sic) water system i (sic) am forced to give notice to the vendor of clause; 22 default by vendor; in relation to clause; 17 approval of improvements; That the settlement date is adjusted to the 18th of feb (sic) 2008 The waist (sic) water system does not follow regulations and part is outside block 102. If I was aware of this problem I would not have allowed the leasing of the property when asked by the vendor. This has increased the time and cost of relocating the system now being in use. (sic)
Also the maintenance and repairs done to prepare the home for lease as instructed by the vendor to be deducted from the perchase (sic) price;
Ducted aircon; replace bearings, v belt, water pump, stop valve and pads.   $240
Labour on aircom, leaking toilet cistern and leaking Plumbing 13 hours at $40 per hour     $520
Total          $760
Thanking you
Brian. (signed)
Clause 22 required any purchaser’s notice of default to require the vendor to remedy the specified default within a specified time, and then to specify whether the agreement will either terminate if the default is not remedied, or whether the vendor will be required to pay interest pending a revised settlement date or the default being remedied. Those are the essential ingredients of a purchaser’s notice.
Mr McFarlane’s fax contained none of those essential elements, and hence did not constitute a notice of default. Therefore the fax did not validly defer the first settlement date.
Was Mr Reffold entitled to charge default interest pending the second settlement date?
Clause 7 of the contract required Mr McFarlane to settle on the scheduled date of 11 February 2008 unless otherwise agreed between the parties.

Although his fax did not validly defer the settlement date, I find it amounted to a statement to all concerned that he would not settle on the 11^th. In cross-examination Mr McFarlane agreed he was not prepared to settle on the 11^th.[14] Mr Reffold gave evidence that he wanted the matter to proceed on the 11^th and that he did not agree to any postponement.
[14] Transcript pp 132-133
Mr McFarlane’s counsel argued that there was in fact an agreement to cancel the first settlement date, and that such agreement meant that Mr McFarlane was not in default by failing to settle on 11 February 2008[15]. That argument was primarily based on the actions of the conveyancer.
[15] The statement of claim was amended part way through the trial to plead this.
Mr McFarlane gave evidence that after he sent his fax the conveyancer called him, told him she had a conflict, said she could not act for him anymore and said that she had to call the settlement off[16]. The conveyancer gave evidence she told Mr McFarlane that they had a conflict and would have to refer him to another conveyancer. She did not say in evidence that she agreed to call the settlement off[17]. In fact the firm attended to settle on the 11^thon behalf of Mr Reffold, dropping off Mr McFarlane’s papers to another conveyancer on the way.
[16] Transcript pp 117 and 121 and 127-8
[17] It was never put to her in cross-examination that this occured.
Mr McFarlane’s counsel suggested that the conveyancer had agreed to put the settlement off, that her actions were inadequate to pass Mr McFarlane’s file on to another conveyancer to allow settlement on the 11^th, and that the firm’s attendance on the 11^th was a mere pretence at settlement on Mr Reffold’s behalf. Mr McFarlane’s counsel also argued that Mr McFarlane relied on an agreement to put off settlement and that Mr Reffold is therefore estopped from denying an agreement to put off settlement.
I find Mr McFarlane’s fax was an unequivocal refusal to settle on the 11th, accurately reflecting his stance at the time. There is dispute about whether the conveyancer responded that the settlement date would have to be put off[18]. If she did say that, I find that it amounted to a simple acknowledgement that if Mr McFarlane was refusing to settle on the 11^th it would have to be put off to a further date. I find it did not amount to a representation or an agreement on behalf of Mr Reffold that the date be put off. I find that Mr McFarlane did not rely on any representation or agreement not to settle on the 11^th. He had decided on the 8^th not to settle on the 11^th, and he was not going to settle on the 11^th for his own reasons. There is no estoppel.
[18] Were it necessary to make a finding, I would find on balance that she did say it, thinking out loud to herself that Mr McFarlane’s stance meant that the settlement would have to be delayed, and plainly not in the context of agreeing anything with Mr McFarlane on Mr Reffold’s behalf.
Accordingly I find that Mr McFarlane refused to settle on 11 February 2008, and that there was no agreement by Mr Reffold to put off that settlement date.
I find that Mr McFarlane’s refusal to settle amounted to a breach of the contract, entitling Mr Reffold to issue a notice to complete per clause 21(3)(a) and to require payment of interest pending the second settlement date.
Was Mr Reffold entitled to refuse to settle on the second settlement date when Mr McFarlane would not pay default interest?
Clause 8(a)(1) of the contract provides that payment of both the purchase price and all monies payable under the contract is a condition precedent to settlement. So if interest was payable and it was not offered at settlement, then Mr Reffold was entitled to refuse to settle if the interest was not proffered.[19]
[19] This was ultimately conceded by counsel for Mr McFarlane, see transcript of addresses at p526.
As interest was payable, Mr Reffold was entitled to refuse to settle when Mr McFarlane would not pay it, and terminate the contract.
Mr Reffold the terminated the contract.
Loss and damage
In case the Court is wrong about whether Mr Reffold was entitled to terminate the contract, I consider the issue of loss and damage.
Mr McFarlane claims two kinds of loss. He says Mr Reffold’s refusal to sell him the property has caused him financial loss, essentially loss of the profit he would have made from redeveloping and/or renting the property. He also says he has suffered disappointment.
Firstly I consider the claim for redevelopment profit. Mr McFarlane was offered standard variable rate loans to enable him to purchase the property.[20] He also produced a bundle of notes and calculations reflecting his estimate of the cost of renovating and improving the property, a quote to power the property, his subdivision plans, the expected rent, and his assessment of the resulting value of the developed property.[21] Mr McFarlane concluded that he could renovate the property for $75,212, which when subdivided would be worth between $610,000 and $680,000.
[20] Exhibit P10 comprises two ANZ loan offer documents dated 14 January 2008.
[21] Exhibit P9
There was no expert evidence to support these conclusions. There was no independent valuation of the property either in its existing state or in its proposed redeveloped state. There was no reliable evidence of how long the redevelopment would take or whether there would be planning or development or other problems or impediments and the cost of obtaining relevant approvals and overcoming likely hurdles. Most importantly, there was no independent evidence of what the property would be worth, even if the redevelopment and subdivision could occur exactly as anticipated, and even if it could occur at the cost estimated by Mr McFarlane.
Evidence was given that Mr McFarlane did instruct a valuer who accessed the property, however no report was produced.
In the final analysis I cannot find proven on the balance of probabilities that either the property could have been subdivided and redeveloped at the cost Mr McFarlane says it could, nor that the resulting development would have any proven value over and above the cost of the property and its redevelopment.
Secondly I consider the claim for loss of rental profit. Mr McFarlane called two witnesses who said that they would have been prepared to rent the property for a total of $370 a week[22]. A report from actuaries estimated the present value of future rental profits at $5000 for the period ending 31 October 2027 when the property would be paid off, and $98,000 over the course of Mr McFarlane’s then remaining life[23].
[22] Mr Kendrick gave evidence he was prepared to rent the transportable home on the property for $150 per week. Mr Godden said he was prepared to rent the house on the property for $220 a week.
[23] Exhibit P22.
Unfortunately, many of the report’s basic assumptions were not proven. I give several examples. There was no proof that the anticipated property outgoings, assumed at 20%, would be any particular figure. Outgoings are a major element of whether a rental property will be profitable. There was no proof of the assumption that the rental would continue unabated until June 2040. Indeed, common sense says that there will likely always be some unoccupied time when tenants vacate and rental properties stand vacant. It assumed that interest rates would remain unchanged into the future, itself an obviously untenable assumption. There was no allowance for contingencies such as natural disaster or tenant or other damage resulting in extended rental loss.
Given the significance and range of the assumptions basing the report that were not satisfactorily proven, I find that no reliance can be placed on the report’s conclusions[24]. There was no other evidence sufficient to establish a net loss of future rental profits. Accordingly no loss of rental profits has been proven.
[24] A further potential problem with the report is that the $98,000 estimate of rental for the period when the property is paid off does not recognise that in paying off the principal owing on the property, capital has also been invested which would otherwise be invested in something else, giving a return. The plaintiff’s loss is the profit it would have received over and above whatever else it would have done with that capital.
Mr McFarlane also claimed he was disappointed at not securing the property.
Damages for disappointment and distress are recoverable if they proceed from physical inconvenience caused by a breach of contract or if the contract is one the object of which is to provide enjoyment, relaxation or freedom from molestation[25].
[25] Baltic Shipping Company v Dillon [1993] HCA 4, per Mason CJ, Toohey and Gaudron JJ. See Mason CJ at para 44.
This contract was for the purchase of land. Mr McFarlane said he wanted it for some combination of rental, redevelopment, subdivision, sale, and to allow easier access to a particular opal field. Enjoyment, relaxation and freedom from molestation were not ostensibly objects of the contract, and I find they were not objects of this contract.
Mr McFarlane claims that he was disappointed in various ways. In my view his only tenable potential claim for disappointment is for the physical inconvenience of not getting easier access to a particular opal field.
Mr McFarlane lives and works from lots 473 and 431 at Andamooka. Mr Reffold’s property was lot 102. The plan of the town[26] shows that Mr McFarlane’s lots are towards the north west of the town whereas lot 102 is on the southern boundary. Mr McFarlane said he currently mined to the north and the west of town but if he had been able to purchase lot 102 he could have more easily explored the field to the south. He said he was a very experienced miner, one of the few who had survived on mining over time. He said the field to the south had not been worked nearly as much probably due to its depth. He said he had found promising traces of opal there. He said that whilst he can currently access the area to the south from lot 473, if he had lot 102 he would already be half way there. He said it would be convenient, cheaper and easier in several ways.
[26] Exhibit P3
Mr Reffold disagreed with Mr McFarlane about the fields to the south, saying with reference to the PIRSA precious field map[27] that they had been mined just as extensively as the areas to the north and west.
[27] Exhibit P21
On balance I find that the physical convenience of easy access to the southern fields was a reason, but only one of several reasons Mr McFarlane wished to purchase lot 102. Other reasons included the outlook and slope of the block, the houses on it, and the scope for subdivision, redevelopment and profit thereby.
I do not accept that the southern fields were more attractive, easier to mine or less mined than the fields to the north and west.
If there was a breach of contract, I find that there was a modest element of disappointment caused in the physical inconvenience of not having more convenient access to the opal fields to the south. Taking into account all the circumstances, I would quantify that disappointment at $20,000.
Conclusion
Mr Reffold did breach the warranty in this contract insofar as the septic system on the property had not been approved. This did not justify Mr McFarlane refusing to settle and purport to defer the settlement date.
Mr McFarlane sent a fax doing just that, which while not amounting to a valid notice of default, did amount to a refusal to settle on the agreed date. This put Mr McFarlane in default and entitled Mr Reffold to charge interest at the second settlement date.
When Mr McFarlane refused to pay that interest Mr Reffold was entitled to refuse to settle and terminate the contract, which he did.
Mr Reffold did not breach the contract in failing to sell the property to Mr McFarlane, and is therefore not liable to Mr McFarlane.
Mr McFarlane’s claim is dismissed.