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McIntyre v Marshall

McIntyre v Marshall

Case [2004] NSWSC 412 17 May 2004

Breach of Contract

Implied Terms

Frustration of Contract

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CITATION: McIntyre v Marshall [2004] NSWSC 412 revised - 20/05/2004

HEARING DATE(S): 11/05/04

JUDGMENT DATE:
17 May 2004

JUDGMENT OF: Gzell J

DECISION: Declaration that a binding contract existed and specific performance

CATCHWORDS: CONVEYANCING - Matters arising between Contract and Conveyance - Vendor issuing notice to complete - Whether vendor free of default by way of breach or antecedent relevant delay - Whether inaccurate answers to requisitions constituted breach or relevant delay - Whether the purchaser was entitled to issue the requisitions - Whether any antecedent breach remained relevant to the relative situation of the parties - Whether the purchaser was entitled to serve further requisitions within 21 days from service of earlier answers - Notice to complete issued within the 21 day period - Whether the notice of termination was justified on the ground of repudiation - Whether the purchaser had the capacity to finance the purchase

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd (1972) 128 CLR 529
Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286
Louinder v Leis (1982) 149 CLR 509
Winchcombe Carson Trustee Co Ltd v Ball-Rand Pty Ltd [1974] 1 NSWLR 477
Jillinda Pty Ltd v McCourt (1983) NSW ConvR 55-145
Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1132
Taylor v Raglan Developments Pty Ltd [1981] 2 NSWLR 117
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286

PARTIES :
Ian Gregory McIntyre - Plaintiff
Neville Noel Marshall - Defendant

FILE NUMBER(S): SC 1699/04

COUNSEL: Mr P Taylor SC/ Mr R R I Harper - Plaintiff
Mr R D Wilson/Ms A Tibbey - Defendant

SOLICITORS: Sage Solicitors & Accountants
Thorntons Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 17 MAY 2004

1699/04 IAN GREGORY MCINTYRE v NEVILLE NOEL MARSHALL

JUDGMENT

1 A contract for sale of land from the defendant to the plaintiff was executed by the parties. The defendant purported to terminate that contract.

2 In the period leading up to the execution of the contract, the plaintiff became aware of road widening proposals by the local authority that would affect the boundary of the land. The plaintiff caused a survey to be carried out and took account of the road widening in plans forming the basis of a development application for the construction of self storage units on the land. The plaintiff said what was not clear to him was whether compensation had been paid to the defendant by Hastings Council and whether any lease-back arrangements had been entered into.

3 There was also discussion in the period leading up to the execution of the contract of the retention of two lean-tos and an awning constructed on the land without Council approval. The contract included a shed. The awning was demolished by the defendant. He had initially said this occurred after the contract had…

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 McIntyre v Marshall

Details

AGLC: McIntyre v Marshall [2004] NSWSC 412
Case: [2004] NSWSC 412
Decision Date: 17 May 2004

CaseChat Overview and Summary

The case of McIntyre v Marshall concerned a dispute between the vendor and purchaser of a property, where the purchaser sought to terminate the contract for sale of land. The case was heard in the Supreme Court of Victoria. The central issue was whether the vendor had breached the contract by providing inaccurate answers to the purchaser's requisitions, and whether this breach justified the purchaser terminating the contract. The court was also required to determine whether the purchaser had the capacity to finance the purchase.

The court considered whether the vendor's inaccurate answers to the purchaser's requisitions constituted a breach of contract or an antecedent relevant delay. The court found that the vendor's answers were inaccurate and therefore constituted a breach of contract. However, the court also found that the breach was not relevant to the relative situation of the parties at the time the notice to complete was issued, and therefore did not justify termination of the contract. The court further found that the purchaser was not entitled to issue the requisitions in the first place, as they were not necessary to complete the contract.

The court held that the vendor's breach of contract did not justify termination of the contract, as the breach was not relevant to the relative situation of the parties at the time the notice to complete was issued. The court also held that the purchaser was not entitled to issue the requisitions, as they were not necessary to complete the contract. The court found that the purchaser did not have the capacity to finance the purchase, and therefore the notice to complete was justified on the ground of repudiation. The court ordered that the contract be terminated and that the deposit be returned to the purchaser.

This decision highlights the importance of accurately answering requisitions in a contract for sale of land, as well as the need for purchasers to ensure that they have the capacity to finance a purchase before entering into a contract. It also underscores the need for vendors to ensure that they are not in breach of contract before issuing a notice to complete.

Orders