Park v Brothers - [2001] NSWSC 88

Reported Decision:
(2001) NSW ConvR 55-973

New South Wales

Supreme Court

CITATION: Park v Brothers [2001] NSWSC 88

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1224/01

HEARING DATE(S): 13 February 2001; then written submissions

JUDGMENT DATE:
27 February 2001

PARTIES :

Lindsay Gordon Park and Jill Park (P)
Clive Roy Brothers (D)

JUDGMENT OF: Young J

COUNSEL : D H Murr SC and J A Trebeck (P)
A G Rogers (D)

SOLICITORS: Holman Webb (P)
Perrot's (D)

CATCHWORDS: CONVEYANCING [60]- Time- Special condition in contract that if sum of money not paid vendor might rescind- Time not of essence- In any event time limit waived. WORDS & PHRASES- "Rescind".

LEGISLATION CITED: Conveyancing Act 1919, s 13

CASES CITED: Abram Steamship Co v Westville Shipping Co [1923] AC 773
Alati v Kruger (1955) 94 CLR 216
Franklin v Manufacturers Mutual Insurance Ltd (1935) 36 SR (NSW) 76
Froome v Palmer (1988) 4 BPR 9712
Kramer v McMahon (1969) 89 WN (Pt 1) (NSW) 584
Legione v Hateley (1983) 152 CLR 406
On Demand Information plc v Michael Gerson (Finance) plc [2001] 1 WLR 155
Re Ronim Pty Ltd [1999] 2 Qd R 172
Raineri v Miles [1981] AC 1050
Ross T Smyth & Co Ltd v TD Bailey, Son & Co [1940] 3 All ER 60
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Shevill v Builders Licensing Board (1982) 149 CLR 620
Smith v Hamilton [1951] Ch 174
Tilley v Thomas (1867) LR 3 Ch App 61
Union Eagle Ltd v Golden Achievement Ltd [1997] AC 514

DECISION: See para 61

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

YOUNG J

TUESDAY 27 FEBRUARY 2001

1224/01 - PARK v BROTHERS

JUDGMENT

1 HIS HONOUR: On 25 January 2001, the plaintiffs as purchasers and the defendant as vendor, entered into a contract for sale in the 2000 edition of the Law Society’s standard form in respect of a farming property at Hay. The purchase price was $3,350,000.

2 It is necessary to set out some of the conditions in full:

Notice to complete

If this contract is not completed on or before the completion date the vendors may at any time thereafter by notice in writing signed and served in accordance with condition number 20 call upon the purchaser to complete this contract at the expiration of fourteen (14) days from the date of service of such notice and in that event time shall become the essence of the contract. The parties agree that the said period of fourteen (14) days is agreed for all purposes to be a reasonable period for completion following the service of a notice to complete.

22.4 The parties further agree that on exchange of Contracts the Vendor will pay the deposit as required by Clause 5 of the Memorandum such deposit to be reimbursed by the Purchaser to the Vendor on or before 7th October 2000. If the reimbursement is not paid by the Purchaser to the Vendor then the…

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 Park v Brothers

Details

AGLC: Park v Brothers [2001] NSWSC 88
Case: [2001] NSWSC 88
Decision Date: 27 February 2001

CaseChat Overview and Summary

In the matter of Park v Brothers, the parties involved were Park, the plaintiff, and Brothers, the defendants. The dispute centred around a contractual agreement pertaining to the sale of a property, where a special condition was included that if a certain sum of money was not paid, the vendor, Park, had the option to rescind the contract. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the time for the payment of the specified sum was of the essence of the contract, and if not, whether the time limit could be waived. The court needed to determine the effect of the special condition on the contractual obligations and the rights of the parties in the event of a default. Additionally, the court had to consider whether the time limit for the payment could be waived and, if so, how such a waiver might be interpreted.

The court held that the time for the payment was not of the essence of the contract, meaning that a failure to pay on time did not automatically entitle the vendor to rescind. Despite the inclusion of the special condition, the court found that the time limit for payment could be waived, and in this case, it was. The court concluded that the vendor's acceptance of a cheque for the payment amount, with a note stating that the cheque could be dishonoured, constituted a waiver of the time limit. This decision underscored the principle that time is generally not of the essence unless expressly stated, and parties are free to waive strict compliance with time limits if they choose to do so.

The court's decision affirmed the validity of the waiver and found that the vendor's right to rescind was effectively nullified by this waiver. The court further clarified that the term "rescind" in the context of the contract referred to the vendor's right to terminate the agreement and seek restitution. Consequently, the court ruled in favour of the defendants, Brothers, affirming that the vendor's right to rescind had been waived and no longer stood as an enforceable condition.

Orders