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Monzer Tabbouch v Scott Devlin

Monzer Tabbouch v Scott Devlin

Case [2008] NSWSC 600 20 June 2008

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CITATION: Monzer Tabbouch v Scott Devlin & Ors [2008] NSWSC 600

HEARING DATE(S): 10/06/08, 11/06/08, 12/06/08

JUDGMENT DATE :
20 June 2008

JURISDICTION: Equity Division

JUDGMENT OF: Einstein J

DECISION: Plaintiff's case against third defendant made out. Plaintiff's case against fourth defendant not made out.

CATCHWORDS: Conveyancing - Notices to complete - Whether original notice to complete ever efficacious to make time of the essence - Where a notice to complete specifies only a date for completion, whether recipient must complete by the end of the ordinary business hours on that day or has until midnight of that day in which to complete - Proper construction of provision permitting notice to complete to be issued within 14 days such time being deemed reasonable and sufficient and in which respect time is said to be of the essence - Whether such a provision exclusively defines the period of notice to be specified in a notice to complete - Expression "within 14 days" intended to be a shorthand way of saying "within a period of not less than 14 days" - Purchaser having given notice to complete to expire on or before 3.00pm on the 14th day agrees with the vendors that completion will take place at a nominate time on 15th day - Purchaser then purports to terminate the contract on the 15th day but prior to the nominate time

LEGISLATION CITED: Conveyancing Act 1919 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

CATEGORY: Principal judgment

CASES CITED: Afovos Shipping Co SA v Pagnan & Anor [1983] 1 All ER 449
Benyon v Wongala Holdings Pty Ltd (1999) 9 BPR 16,781
Byrne & Anor v Gagie (1991) NSW ConvR 55-604
Canning v Temby (1905) 3 CLR 419
Carr v Keys-Arenas (1982) NSW ConvR 55-069
Carr v JA Berriman Pty Ltd (1953) 89 CLR 327
Clark v Donald [unreported, Supreme Court of New South Wales, Wootton J, 19 December 1974]
Commodities and Services International SA v Clemence Properites (Grays Inn) Ltd (unreported, Walton J, High Court, Eng, 1986; noted [1991] Conv 476
Dodds v Walker [1981] 2 All ER 609
Falconer v Wilson [1973] 2 NSWLR 131
Holland v Wiltshire (1954) 90 CLR 409
Karangahape Road International Village Ltd v Holloway (1989) 1 NZLR 83
Keys-Arenas v Carr (1982) NSW ConvR 55-068
Lester v Garland (1808) 15 Ves 248, 33 ER 748
Lohar Corporation Pty Ltd v Dibu Pty Ltd (1976) 1 BPR 9177
Lowe v Evans [1989] 1 Qd R 295
Lucas & Tait (Investments) Pty Ltd v Victoria Securities Ltd [1973] 2 NSWLR 268
M & L Hazelton Pty Ltd v Woodfield (1982) 2 BPR 9558
Michael Realty Pty Ltd v Carr [1977] 1 NSWLR 553
Mission Corporation Ltd v Telecom Auckland Ltd [1994] 2 NZLR 357
Paclyn Pty Ltd v GP Harris Real Estate Pty Ltd (1987) 4 BPR 9267
Panoutsos v Raymond Hadley Corporation of New York [1917] 2 KB 473
Peter Turnbull and Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR…

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 Monzer Tabbouch v Scott Devlin

Details

AGLC: Monzer Tabbouch v Scott Devlin [2008] NSWSC 600
Case: [2008] NSWSC 600
Decision Date: 20 June 2008

CaseChat Overview and Summary

In the case of Monzer Tabbouch v Scott Devlin, the dispute arose from a failed property transaction. Monzer Tabbouch, the plaintiff, was a purchaser who had entered into a contract to buy a property from Scott Devlin, the defendant, the vendor. The crux of the disagreement was the interpretation of the notice to complete within the contract, specifically the time by which the purchase needed to be finalised. The case was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to address was whether the original notice to complete could ever make the time of the essence, particularly in relation to the specified completion date. Another critical issue was whether the notice to complete, which only mentioned a date but not a time, required the purchaser to complete by the end of ordinary business hours on that day or if they had until midnight. Additionally, the court needed to determine the proper construction of the clause allowing the notice to complete to be issued within 14 days, which was deemed reasonable and sufficient, and the extent to which time was considered of the essence.

The court held that the expression "within 14 days" should be interpreted as "within a period of not less than 14 days". It concluded that the purchaser, having agreed with the vendors that completion would occur at a nominated time on the 15th day, was not required to complete by the end of the ordinary business hours on the 14th day. Consequently, the purchaser's attempt to terminate the contract on the 15th day, prior to the nominated completion time, was deemed ineffective. The court ruled in favour of the vendor, Scott Devlin, finding that the purchaser's actions did not conform to the contractual obligations and that the original notice to complete was not sufficient to render the time of the essence in the manner claimed by the purchaser.

The court's final order was that the contract remained valid, and the purchaser was required to complete the purchase by the terms originally set out, including the nominated time on the 15th day. The vendor was awarded costs associated with the litigation.

Orders