Pelican Point Enterprises Pty Ltd v Primavine Pty Ltd - [2008] SASC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PELICAN POINT ENTERPRISES PTY LTD v PRIMAVINE PTY LTD
[2008] SASC 10
Judgment of The Honourable Justice Debelle
18 January 2008
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - CONDITIONS
Contract for sale of land - contract conditional on completion of steps to obtain land grant by specified time - interpretation of conditions - whether condition satisfied - whether specific performance should be ordered.
Held: condition satisfied - order for specific performance.
Supreme Court Rules 1987 r 99, r 100, referred to.
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537; Butts v O'Dwyer (1952) 87 CLR 267; Meehan v Jones (1982) 149 CLR 571; Paltara Pty Ltd v Dempster (1991) 6 WAR 85; Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Gange v Sullivan (1966) 116 CLR 418; Bedroff Pty Ltd v Rennie [2002] NSWSC 928; Amber Holdings (Aust) Pty Ltd v Polona Pty Ltd [1982] 2 NSWLR 470; Bahr v Nicolay (No 2) (1988) 164 CLR 604; Sydney Consumers' Milk and Ice Co Ltd v Hawkesbury Dairy and Ice Society Ltd (1931) 31 SR (NSW) 458, applied.
Mehmet v Benson (1965) 113 CLR 295, discussed.
Baird v Magripilis (1925) 37 CLR 321; Tsangaris v Gaymark Investments Pty Ltd (1986) 82 FLR 269, considered.

PELICAN POINT ENTERPRISES PTY LTD v PRIMAVINE PTY LTD
[2008] SASC 10
Civil

DEBELLE J. In this action the plaintiff seeks, among other things, an order for specific performance of a contract for the sale of land. The issues, in large part, turn on the terms of a special condition relating to the conversion of the defendant vendor’s interest in the land from a leasehold interest pursuant to a Crown Lease to a freehold interest.
The plaintiff currently carries on business in this State. The directors of the company are Mr AP Ciccarello, Mr Anthony Gabelic and Mr Steven Gabelic.
The defendant is a company controlled by Mr Arnold Thomson and his wife, Mrs Bessie Thomson. They are the only directors and shareholders of the defendant company.
The evidence was not extensive. It essentially consisted of documents including business records. The oral evidence was given by three witnesses. The plaintiff called two witnesses. The first was Mr D’Arginio. He is a licensed conveyancer and is the supervisor of a unit in the Department of Heritage and Environment called “Perpetual Lease Accelerated Funding”. For convenience, I will call it “PLAF”. The duties of PLAF included dealing with the defendant to arrange the grant of a freehold title to the land. Mr D’Arginio produced relevant documents and business records and gave evidence concerning the practices of PLAF and the status of the application to convert the subject land to a freehold title. He was clearly an honest witness and I accept his evidence. Mr Ciccarello gave evidence for the plaintiff. He too impressed me as an honest witness. I accept his evidence but it added little to the documentary evidence.
The only witness called by the defendant was Mr Thomson. He gave little evidence-in-chief but was cross-examined at some length. He was not frank and had obviously decided to say as little as he could. At times his evidence conflicted with objective fact. On other occasions he was evasive and, I find, deliberately evasive. There are inconsistencies in his evidence. He was a most unsatisfactory witness. I do not accept his evidence except where he finally acknowledged that Mr Salvati was attending to the steps necessary on behalf of the defendant to obtain a grant of freehold.
An Application for Freehold Title
The defendant holds a large parcel of land pursuant to a Crown Lease. The land is comprised and described in Crown Lease Register Book Volume 293 Folio 37. The land is near Mannum and has a frontage to the River Murray.
On 1 March 2004 the defendant applied to convert its interest in the land to a freehold title. The application was signed on behalf of the defendant by Mr Thomson. The application was made to the unit in the Department of Environment and Heritage that I have called “PLAF”.
PLAF required that land with a frontage to water should not be converted to a freehold title unless a waterfront reserve subject to a Crown Lease is provided to a width of at least 50 metres. By letter to the defendant dated 30 April 2004, PLAF informed it of that requirement. The defendant agreed to provide such a reserve.
By letter sent at some time between 29 August 2005 and 28 October 2005, PLAF informed the defendant that approval had been granted for surrender of the waterfront reserve and the issue of a freehold title for the land. The uncertainty as to the date is a consequence of the fact that the PLAF file does not contain a copy of the letter which was sent but only a draft of that letter. The letter was drafted on 29 August and, as will be seen, on 28 October the defendant complied with two of the conditions of the letter. In the light of these facts, I find that the letter was sent between 29 August and 28 October 2005. The letter enclosed a document called “Surrender of Crown Lease for Land Grant” (“the surrender”). The letter from PLAF required the defendant to provide the following:
·fees, including purchase money, totalling $653.60;
·the surrender duly executed and endorsed with the consent of others who had interests in the Crown Lease; and
·the duplicate copy of the Crown Lease.
The letter stated that the offer was to remain open for three months from the date of the letter and that, if the defendant failed to comply with the terms of the letter, the offer would lapse. On 28 October 2005, the defendant paid the fees totalling $653.60 and deposited with PLAF its duplicate copy of the Crown Lease.
The defendant executed the surrender in about October 2005. It was then necessary for the defendant to secure the consent of other parties. The land was subject to two underleases to four persons John Harvey Heward, Irene Heward, Michael Noel Heward and Joanne Kathleen Heward. The underleases had been registered. The evidence does not establish whether the underleases were for part or the whole of the land. In the result, that question does not appear to be of any consequence. Each of the underlessees signed the surrender signifying his or her consent to it. A copy of the surrender executed by the defendant and endorsed with the consent of the underlessees was received by PLAF at some time in late 2005. There is no record of the date when it was received.
The Hewards had granted a registered mortgage over one of the underleases to the National Australia Bank (“the Bank”). It was also necessary for the Bank to endorse its consent to the surrender. As will be seen, it took some time for that consent to be endorsed on the surrender.
A Contract to Sell The Land
In the meantime, in November 2005, the defendant had appointed Colliers International (SA) Pty Ltd (“Colliers”) to act as its agent to sell the land. The appointment was the subject of a Commercial Sales Agency Agreement made between the defendant and Colliers dated 24 November 2005. Mr Craig Klemich was an employee of Colliers. He acted for the defendant under that appointment.
On 22 February 2006 the plaintiff and the defendant entered into a contract by which the defendant agreed to sell to the plaintiff and the plaintiff agreed to buy the land. The price for the land was $700,000. The contract was subject to six special conditions, namely,
1.     VENDOR TO COMPLETE FREEHOLDING OF CROWN LEASE
This contract is subject to the vendor attending to the completion of the freeholding of the within Crown lease on or before 30 June 2006 with all associated costs and fees to be paid by the vendor.
2.     ACCESS TO THE LAND ALLOWED
Upon execution of this contract by the vendor and purchaser the vendor agrees to allow the purchaser to have access to the land for purpose of conducting soil tests and environmental studies on the land.
3.     PUBLIC LIABILITY INSURANCE
Prior to entering upon the land the purchaser must arrange a public liability insurance policy in respect to the land for a minimum of $20 million and the purchaser shall at all times keep the vendor indemnified against any claim or claims which may arise in respect of the land. If requested by the vendor the purchaser shall provide a copy of the public liability certificate of insurance.
4.     DEPOSIT TO BE PAID BY THE PURCHASER
The purchaser shall pay a deposit of $35,000.00 to Colliers International Trust Account within seven (7) days after the freehold certificates of title for allotments 502 and 503 have been issued by the Lands Titles Office.
5.     SETTLEMENT DATE
It is hereby agreed between the vendor and purchaser that settlement shall take place six (6) months after the date of issue of the freehold certificates of title for allotments 502 and 503 by the Lands Titles Office.
6.     ZONING OF LAND
It is a condition of this contract that the land comprised in the two separate certificates of title to issue is zoned as detailed below:
1. Allotment 502 – Zoned flood plain policy area Mid-Murray Council
2. Allotment 503 – 930 – Zoned recreation and tourism policy area
The issues in this action essentially turn on the first of those conditions. I will call it “the special condition”.
By the time the contract had been made, the surrender had been executed by the defendant and the Hewards had endorsed their consent as underlessees.
The contract had been drawn by a Mr Tony Salvati, a licensed conveyancer, using what appears to be a standard form of agreement prepared by the Australian Institute of Conveyancers South Australian Division Inc. Mr Salvati prepared other documents in relation to this matter including documents requested by PLAF. I find that he acted on behalf of the defendant as its conveyancer and had been retained by the defendant to do whatever was necessary to assist in the obtaining of the grant of freehold title. Mr Thomson initially gave evidence suggesting that Mr Salvati was not acting for the defendant but later acknowledged that he was acting for the defendant in relation to the contract and in respect of the conversion of the Crown Lease to a freehold title. Mr Salvati acted in so many aspects of the matter that the only reasonable inference is that he was acting for the defendant and was doing all that was necessary to obtain the grant of a freehold title.
Other Documents Necessary
In early March 2006, it was discovered that it was necessary to register a change of name for Mrs JK Heward. Her interest in one of the underleases had been registered in her former name, Joanne Kathleen Chase. She had since married Mr MN Heward and it was necessary to register her change of name as Joanne Kathleen Heward. On 7 March 2006, Mr Salvati telephoned PLAF and spoke to Mr Wareing. Mr Wareing was the officer in PLAF who handled the defendant’s application for a freehold title. He is a licensed conveyancer and had the day to day conduct of the defendant’s application. Salvati informed Wareing that he was preparing an application to register the change of name. Salvati did not proceed with great haste. He did not send the application for change of name to Mrs Heward to sign until 14 March. Mrs Heward executed the change of name on 16 March and returned it to Salvati. On 21 March 2006, Salvati provided a photocopy of the application of change of name to PLAF. At that stage the consent of the Bank to the surrender had not been obtained.
On 4 April 2006, Salvati telephoned Mr Wareing to ascertain whether PLAF had received the surrender. Wareing explained that the surrender had been sent to Mrs JK Heward so that she could obtain the consent of the Bank as mortgagee. Salvati informed Wareing that he would chase the matter up.
It took some time for the consent of the Bank to be prepared and executed. On 18 April 2006, Salvati sent the surrender to the Bank for the endorsement of its consent. The Bank endorsed its consent. The endorsement is not dated. The Bank returned the surrender to Salvati by letter dated 16 May 2006. I infer that it was executed on or shortly before 16 May. There is no explanation for the Bank taking so long to endorse its consent. Some of the delay might have been caused by the absence on leave of the officer in the Bank who was dealing with it.
The application to note the change of name of Mrs Heward could not be registered until the Bank had produced the underlease which it was holding as mortgagee. The Bank had lost the underlease. On 14 June 2006 Mr Salvati received a telephone call from an officer of the Bank stating that the Bank could not find it. It was necessary for an application to be made to dispense with the production of the lease. That, in turn, required public notice of the loss of the underlease and of the intention to apply to dispense with production of it. It was not until 11 July 2006 that the notice was published in The Advertiser. On 11 July the Bank executed the application to dispense with production of the underlease. It must be noted that this application was not a document which had to be lodged with PLAF. Instead, that application and the application to register the change of name were documents to be produced by the defendant at a joint lodging of the documents at the Lands Titles Office to enable the issue of a new certificate of title for the freehold title. PLAF would of course wish to be satisfied that the documents had been executed.
The PLAF file contains what are called “discussion sheets”. These are forms on which officers in PLAF make notes of conversations and record other information. Notes made on these files show that Mr Salvati was from time to time reporting progress and lodging copies of documents as they were executed. Mr Salvati lodged a copy of the application to change the name of Mrs Heward on 21 March 2006. On the same day, he informed Mr Wareing that the consent of the Bank as mortgagee was being obtained. On 23 June 2006 Mr Salvati informed Mr Wareing that he held the surrender endorsed with the consent of the Bank. He said he would deliver it within “a couple of days” but failed to do so.
On 10 July Mr Salvati again spoke to Mr Wareing stating that he would lodge the documents within “the next couple of days”. He did so on 11 July. A note on the discussion sheet which is Exhibit P15 states that the documents were lodged over the counter on 11 July 2006. Attached to Exhibit P15 is another note which refers to the receipt of the application to change the name of Mrs Heward. The note concludes with this request to an officer in PLAF:
REQUIREMENTS RECEIVED. Please update checks and searches to enable L/G to issue.
The note is dated 11 July. The reference to “L/G” plainly means land grant. Mr D’Arginio explained that the reason for further enquiries and searches before the land grant was to ensure that no further dealings with the land had occurred which might stand in the path of the land grant. He said that there was nothing which would prevent the land grant. It appears that the ability to obtain a land grant continued notwithstanding that the defendant’s compliance with the conditions in the PLAF letter had not occurred within the period of three months stated in that letter.
It appears that in late June 2006 Mr Klemich was becoming concerned that the defendant would not secure a grant of freehold before 30 June 2006 and so would not be able to comply with paragraph 1 of the special conditions of the contract to sell the land. He asked Mr Ciccarello to instruct the plaintiffs’ solicitors to have an agreement extending the term of the contract prepared. Mr Ciccarello refused stating that he believed that it should be prepared by the defendant. Mr Klemich arranged for an agreement extending the time to satisfy the special condition. The document was called “Addendum to Contract”. The addendum is a document intended to vary the terms of the contract made on 22 February 2006. The addendum was a short document. After identifying the parties, and the date of the contract, the document read:
Changes to Special Conditions:
Clause 1
The vendor agrees to extend the completion date of the freeholding within the Crown Lease to, on or before 10 December 2006.
Clause 4
The purchaser shall pay a “part” deposit of $5,000 upon both parties signing this addendum to the contract, with the balance of $30,000 payable to Colliers International Trust Account within seven (7) days after the freehold Certificates of Title for Allotment 502 and 503 have been issued by the Land Titles Office.
The balance of the document provides for the date of the document and its execution. Mr Thomson gave evidence that Mr Klemich had no authority to prepare the addendum. I do not accept that evidence for reasons I will shortly give.
In the last week of June 2006 the Thomsons asked Mr Klemich to report upon the progress of the contract. They did so in an exchange of emails. The emails which were exchanged are set out below in the terms in which they were sent. The emails were sent by Mrs Thomson. Mr Thomson agreed in evidence that he had asked her to find out what was going on. I find that all the emails were sent by Mrs Thomson at her husband’s request and in accordance with his instructions.
At 10.38 am on 26 June Mrs Thomson sent the following email to Klemich:
Can you please give me an update on the progress of the new contract details.
In June 2006 there were no “new contract details” other than the preparation of the addendum. I find, therefore, that the expression “the new contract details” is a reference to the preparation of the addendum. That is confirmed by Mr Klemich’s reply some 10 minutes later in these terms:
I am following up…as I am aware the purchasers solicitor is preparing an adendum to the original contract and I should have it soon.
Exactly, what has Tony Salvati got in his hands, and have the docs been lodged at the LTO yet?
The email from Mr Klemich is not entirely correct in that the addendum was not being prepared by the plaintiff’s solicitors. The evidence does not establish who prepared the addendum.
On 27 June 2006 at 8.56 am Klemich sent the addendum to the plaintiff for execution. He sent it by facsimile transmission. At that time, the plaintiffs were having difficulties with receipt of documents sent by facsimile transmission. In any event, the addendum was executed by Mr Anthony Gabelic and Mr Steven Gabelic, two of the directors of the plaintiff. I find that at about 2.00 pm on 30 June 2006 the addendum executed by the Gabelics was returned to Colliers. I make the finding notwithstanding that there are facsimile transmissions showing the time as 2.40 pm because of the evidence that the plaintiff’s facsimile machine was not correctly functioning at this time. In a moment, I refer to other evidence that Colliers sent the emailed copy to the plaintiff for execution at 2.21 pm.
In the meantime, on 27 June at 2.23 pm, Mrs Thomson sent Klemich an email on these terms:
Arnold mentioned that you were going to send thru the adendum today, is that correct?
It seems Klemich did not reply. By then he had sent the addendum to the plaintiff for execution. In the meantime, on 28 June at 1.56 pm, Mrs Thomson had sent an email to Klemich in these terms:
Will you be sending the adendum per email or fax today?
Some 30 minutes later at 2.25 pm, Klemich replied in these terms:
I do not have it back yet…I have just left a message.
I would expect it later today.
I will keep you informed.
There was no further communication between Mrs Thomson and Klemich until 10.21 am on 30 June when Mrs Thomson sent an email to Klemich in these terms:
Have you received anything back? If not does that mean the original contract becomes null and void as of today?
Plainly, Mrs Thomson wished to know whether the defendant was still bound to complete the contract.

I find that on 30 June 2006, Klemich had arranged that, as soon as Colliers received the addendum executed on behalf of the plaintiff, the addendum should be sent to the defendant for execution. A facsimile of the addendum as executed by the plaintiff was received by Colliers at about 2.00 pm. At 2.21 pm on 30 June, Colliers sent the addendum to the plaintiff by facsimile transmission. It was attached to a letter from an administrative assistant at Colliers. The letter read:
Please find attached Addendum to Contract for you signature as discussed with Craig Klemich. Please return the signed addendum to the fax number above.
The defendants did not execute the addendum. They did not return it to Klemich.
Mr Thomson gave evidence that by 30 June he had decided that he did not wish to proceed with the contract. He said he had also decided not to proceed with the application for a land grant. Mr Thomson gave no better reason than that “he was having trouble with Craig Klemich…being abusive and everything. So I decided we weren’t going to go through with it”. He said that he made that decision in the last week of June. I do not accept that the decision not to proceed with the contract was made in the last week of June. For reasons I will shortly give, the decision not to proceed was not made until about 11 July 2006. I find that Mr Thomson did not inform Mr Salvati until after 11 July 1976 that he had made that decision. The evidence does not indicate when it was after 11 July that Mr Thomson informed Mr Salvati that the defendant was not proceeding with the contract.
On 10 July 2006 at 2.49 pm, Mrs Thomson sent Mr Klemich an email in these terms:
Hi Craig,
I am still waiting for a response to the following email.
Thanks.
The document she called “the following email” was the email sent by her to Klemich at 10.22 am on 30 June 2006. There is no evidence explaining why she had sent the email of 10 July. Mr Klemich had responded in part to her email of 30 June when Colliers had sent Mrs Thomson the addendum for execution by the defendant. I can only infer that Mrs Thomson was seeking an answer to her question whether the contract became null and void on 30 June 2006. That would be consistent with the fact that the Thomsons were still considering whether the defendant would not proceed with the contract.
Mr Klemich replied by email sent at 3.46 pm on 10 July. It read:
Bessie
As you are aware, I faxed you the addendum on 30/6/06.
You chose to not sign it, hence a caveat is now on the title, as I understand the buyers have lodged it. The buyers are not backing down….I cannot understand what you and Arnold are doing…but I sense you are trying to get out of the contract…and the buyers will not back down. Are you trying to avoid agents fees? Remember, we did not exactly have buyers rushing to sign…these guys were our best bet!!
The delay has been no fault of the buyers, and if you have another buyer…it won’t happen, as the buyers will not back down.
Bessie, you and Arnold need to have a good think about this.
Craig.
A degree of exasperation on Klemich’s part is apparent in the email. I find that the email correctly states the position which was then prevailing and had prevailed since shortly before 30 June 2006, namely, that the Thomsons were considering whether the defendant would perform its obligations under the contract. They were of the view that it should not but had not finally made that decision. The plaintiff as purchaser wished to enforce the contract. That was evident from its execution of the addendum.
Shortly after receiving that email, Mrs Thomson sent a copy of it to Mr Salvati. Mrs Thomson made no comment when sending it.
On 10 July, Mr Salvati had telephoned Mr Wareing at PLAF asking if PLAF was ready to proceed with the grant of the freehold. I find that he did so before receiving the email from Mrs Thomson. Mr Wareing’s note of that conversation reads:
Tony Salvati rang – “thought” we may be “ready”!! Thought we were awaiting other “government documents”??? I confirmed the previous minute of 23.6.06 (above) stating that we are awaiting the return of the surrender document. He said he will deliver to PLAF (with c/name? Document) within next couple of days. Then he will arrange a from to dispense with the production of the Underlease, - then a Joint Lodgement can be arranged.
The note contains obvious expressions of surprise at the nature of Salvati’s enquiry. PLAF had been waiting for some time for all necessary documents to be lodged. Given the delay, officers in PLAF were entitled to be surprised. I find that on 10 July Mr Salvati believed that the defendant wished to proceed with the surrender and to obtain a grant of a freehold title. I find that the Thomsons had not then instructed him to the contrary. Mrs Thomson’s action in sending a copy of Klemich’s email of 10 July does not constitute instructions to the contrary as the email was sent without comment. Although the email might have caused Mr Salvati to wonder what the defendant’s intentions were, it was reasonable for him to proceed on the footing that the defendant intended to proceed until he received instructions to the contrary.
I find that the Thomsons did not instruct Mr Salvati on either 10 or 11 July 2006 that the defendant was not proceeding either to seek to obtain the freehold title or with the contract. The records of PLAF show that on 11 July 2006 a surrender with all necessary consents was lodged at PLAF with the application to register the change of name of Mrs Heward. I infer also that the Bank’s application to dispense with production of the mortgage was not lodged because that was a document to be produced at a meeting at the Lands Titles Office at which documents were to be lodged jointly by PALF and the defendant. It is the “Joint Lodgement” referred to in the PLAF note of 10 July quoted earlier.
The evidence suggests and I find that it was Mr Salvati who lodged the documents on 11 July at PLAF. He was the person who had been instructed to prepare the change of name and seek the consent of the Bank to the surrender. He had undertaken that task and had the relevant documents in his possession. It is reasonable to infer, as I do, that he had those documents ready to lodge with PLAF. I find that in the absence of any contrary instruction, he lodged them on 11 July 2006. The fact that Mr Salvati had no contrary instructions is confirmed by the fact that on 17 July 2006 Mr Salvati rang Mr Wareing at PLAF to enquire as to progress. Wareing replied that PLAF had nearly finished its part of the transaction and it would contact him when it was ready to arrange the joint lodgement of the documents at the Lands Titles Office.
I find that the plaintiff was aware that the defendant might not complete the contract. I find that the defendant had not stated that intention to the plaintiff by 11 July 2006. The plaintiff’s concern stemmed from information given to it by Mr Klemich. It is reasonable to infer, as I do, from Klemich’s email to Mrs Thomson on 10 July that he had informed the plaintiff through Mr Ciccarello that the defendant had not executed the addendum and that Mr Ciccarello had informed him that the plaintiff wished to complete. It is clear that the plaintiff wished to take whatever action was necessary to preserve its contractual rights. It consulted McNamara Business and Property Law, solicitors, and, in particular, a Mr Ujvari in that firm. On 11 July 2006, Mr Ujvari lodged at the Lands Titles Office a caveat on behalf of the plaintiff preventing any dealings in the subject land without the consent of the plaintiff. The interest on which the plaintiff relied to support the caveat was its interest as purchaser under the contract dated 22 February 2006.
The fact that Mr and Mrs Thomson had not made a final decision before 30 June 2006 is confirmed by an email sent by Mr Klemich to Mrs Thomson on 14 July. The email was in these terms:
Hi Bessie,
Please email ASAP (as discussed with Arnold) your intentions, or wish to cancel previous contract.
I need something in writing to provide to the purchaser.
At this stage it is only me telling them…they need it in writing..from you as the vendor.
Thankyou,
Craig
I find that at that stage the Thomsons had not finally decided that the defendant would not proceed with the contract. However, they made that decision some time after 11 July. Mr Thomson’s evidence was that he had given that instruction to Mr Klemich before 30 June. In my view, that was self-serving evidence given in an attempt to bolster the defendant’s case. I do not accept it. Although it is not possible to find precisely when the Thomsons made that decision, it is clear that it was made on or after 11 July.
The exchange of emails between the Thomsons and Mr Klemich contained nothing to suggest that Mr Klemich was proceeding without instructions when he prepared the addendum. It is reasonable to infer that, had he been acting without instructions, the Thomsons would immediately have told him that he had no authority to prepare the addendum. They did not. Instead, in the last week of June they inquired whether the addendum was ready for execution. I find that the Thomsons were willing to have the addendum prepared but at the same time they were considering whether the contract might be terminated because the special condition had not been satisfied. They were keeping all options open. That is why Mrs Thomson asked Mr Klemich on 30 June whether “the original contract becomes null and void as of today”. I further find that the Thomsons considered what the defendant might do and ultimately made a decision on or about 11 July. That decision was made either after Mr Salvati had lodged the documents at PLAF or, if made before, they did not inform him of that decision until after 17 July. It is possible that they did not tell him at any time of their decision and that Mr Klemich was the only person they informed of their decision.
At all events, the Thomsons had made a final decision before 1 August. That is apparent from the following email sent on 1 August at 10.37 am by Mr Klemich to Mrs Thomson:
Bessie,
Please email me confirmation of your wish to not extend the special condition on the contract, your wish to terminate etc. etc.
I can then forward to the purchaser on your behalf.
Thankyou. Craig.
Mrs Thomson replied immediately:
Craig,
According to Arnold’s instructions yesterday you have to email the purchaser not us and please copy me on the email.
Thanks
Bessie Thomson
The Thomsons had consulted Mr Lindblom, a solicitor. On 2 August 2006. Mr Lindblom sent Mr Klemich a letter instructing him to inform the plaintiff that the defendant was not proceeding with the contract. The letter was in these terms:
We have been instructed by the abovenamed in relation to the agreement for sale and purchase of land with Pelican Point Enterprises Pty Ltd.
We have been provided with a proposed addendum to the contract which our client declines to execute.
We have been instructed to advise that our client has been unable to fulfil the special conditions re completion of the freeholding of the Crown Lease on or before the 30^th of June 2006 and as such the contract is terminated.
We are instructed that you act as our client’s agent and request that you formally advise the purchaser that the contract is hereby terminated.
Could you please provide us with a copy of your written notice to the purchaser of our client’s position.
Should you wish to discuss any aspect, please do not hesitate to contact the writer.
Mr Klemich complied with that instruction. On 9 August 2006, he sent an email to Mr Lindblom informing him that he had sent a copy of Lindblom’s letter of 2 August to the purchasers. He asked Mr Lindblom to deal directly with the solicitors for the plaintiff. I find that Mr Klemich’s action in sending Mr Lindblom’s letter of 2 August to the plaintiff was the first formal notice to the plaintiff that the defendant was not proceeding with the contract.
In the meantime, on 24 July 2006, Mr Klemich had called at the offices of PLAF and had taken possession of the surrender endorsed, as it was, with the necessary consents. He informed Mr Wareing that he was meeting the plaintiff on 25 July and wished to have the plaintiff’s consent endorsed on the surrender. Mr Klemich did not ask the plaintiff to endorse its consent. The surrender document has not been returned to PLAF. As will soon be noted, the plaintiff did not execute any form of consent until 18 December 2006.
On 8 August, Mr Thomson went to the offices of PLAF and asked Mr Wareing how the application for the surrender was proceeding. A note on the discussion sheet records the effect of his conversation with Mr Wareing. It is in these terms:
Mr Arnold Thompson (PRIMAVINE) came to PLAF (12.30 pm) office to see what latest progress was with Application. I advised him that we are awaiting return of Surrender document with consent of Caveator. He is aware of the situation (caveator needs Mr Thompson to agree/sign a contract condition) and seemed comfortable that because he is not agreeing to certain terms the transaction has not progressed beyond this stage. He is aware that when the Surrender has consent clause signed and returned the Land Grant could be ready in 3-4 weeks.
Given the events which had occurred, Mr Thomson’s visit to PLAF is curious. Mr Thomson said in his evidence that he did not inform Mr Wareing that he had terminated the contract. That too is curious in light of the fact that Mr Wareing had told him that PLAF was waiting for the consent of the plaintiff as caveator to the surrender.
Thereafter little occurred between the parties for some three months. The next step occurred on 17 November 2006 when the plaintiff instituted these proceedings. Although there is no direct evidence of the fact, it is common ground and I find that the defendant had sought removal of the caveat and that the Registrar-General had by notice dated 31 October 2006 given notice to the plaintiff of his intention to remove the caveat unless it was extended by order of this Court. On 17 November 2006 the plaintiff issued these proceedings applying for an order extending the operation of the caveat. On 20 November 2006 and thereafter, orders were made extending the operation of the caveat.
On 8 December 2006 Mr Ujvari, the plaintiff’s solicitor, sent to the defendant a notice stating that the defendant was in default of its obligations under the contract and requiring it to remedy the default by 30 March 2007. The notice relied on the addendum and asserted that the time for completion had been extended until 10 December. That assertion was incorrect and the reliance on the addendum was misplaced. I set out my reasons for that conclusion in a moment. The notice required, among other things, that the plaintiff remedy the default before 30 March 2007. The only manner in which the plaintiff could remedy the default was to return the surrender document to PLAF. Plainly it was not prepared to do so. On the same day, Mr Ujvari also sent a copy of the notice to the defendant’s solicitor, Mr Lindblom.
In the week preceding Tuesday 12 December 2006, Mr Ujvari had spoken to Mr Wareing about the progress of the conversion of the title from a Crown Lease to a freehold title. On 12 December, Mr Ujvari spoke by telephone to Mr Wareing informing him that the plaintiff as caveator intended to consent to the surrender of the Crown Lease. He asked Mr Wareing to send whatever documents were required for execution by the plaintiff. Mr Ujvari confirmed the telephone conversation by an email sent the same day. On 12 December Mr Wareing replied stating that the surrender had been collected by Mr Klemich for the purposes of obtaining the consent of the caveator. The email was in these terms:

Hi Kazmer,
Our discussion last week included an update of the situation regarding the location of the Surrender document. I informed you that it was collected from our office by Craig Kelliett from Colliers on 24/07/06. Craig was going to obtain the consent of the Caveator as he was seeing them the following day, but it has not been returned.
I think you were going to seek an update from Craig on this matter.
Please contact me if there is any change to this process, or if I need to be aware of any further action or assistance required on my part.
Regards
Mark

It is common ground that the expression “Craig Kelliett” refers to Mr Klemich. It appears that officers in PLAF did not know Mr Klemich’s correct name. On 15 December Mr Wareing sent Mr Ujvari a draft copy of the surrender document. On 18 December Mr Ujvari caused a letter to be delivered to PLAF marked for the attention of Mr Wareing. The letter enclosed the executed consent of the plaintiff to the surrender of the Crown Lease.

Against that recital of the facts, I make some observations as to the more salient facts and make further findings of fact.
1 At all times, the plaintiff intended that the contract should be performed and took whatever steps it was advised to enable completion. It promptly executed the addendum in June 2006 and it caused a caveat to be lodged to protect its interest under the contract. By delivering its consent to the surrender, it was doing all it could to ensure that a grant of freehold title would be made to all necessary consents to the surrender of the Crown Lease had been endorsed on the surrender document.
2 All the documents were lodged with PLAF on 11 July 2006 by Mr Salvati on behalf of the defendant. Mr Salvati had all the documents required by PLAF in his possession by mid May. There was nothing which prevented him from lodging the documents on behalf of the defendant before 30 June 2006. It was not necessary for it to lodge the Bank’s application to dispense with the production of the underlease. That was a document to be presented by Mr Salvati at a joint lodging of documents at the Lands Titles Office, when PLAF would attend with all the documents necessary to proceed with the grant of a freehold title and the defendant would attend with its documents.
3 The delay in causing the documents to be lodged was caused by the defendant or its agents and in particular Mr Salvati. When the contract was made on 22 February 2006, at least four months remained in which to complete the necessary steps. Little remained to be done. The defendant had already executed the surrender and the underlessees had already endorsed their consent. All that remained to be done was the execution by Mrs Heward of the application to register her change of name and the endorsement on the surrender of the consent of the Bank as mortgagee. The execution of the application to the change of name of Mrs Heward was in Mr Salvati’s possession by no later than 21 March. There was nothing which prevented Mr Salvati from sending the surrender to the Bank for its execution of its consent but it was not sent until 18 April 2006. It seems that the surrender had been in the possession of PLAF and Mrs Heward for a time but there was nothing to prevent Mr Salvati from obtaining it and promptly sending it to the Bank. It seems that Mr Salvati did not take any steps to ensure prompt execution by the Bank of its consent as the Bank did not return it until 16 May. Mr Salvati then had all the documents required by PLAF but did not lodge them with PLAF. I have already stated why his delay is not excused by the fact that it was necessary for the Bank to apply for dispensation from having to produce the underlease.
4 Although the Thomsons were considering whether to terminate the contract, they did not make a firm decision to do so until after 11 July 2006.
5 The plaintiff was not given written notice of the defendant’s intention until after 2 August 2006 when Mr Klemich informed it of the contents of Mr Lindblom’s letter of 2 August.
6 The Thomsons had no better reason for deciding that the defendant should not proceed to perform the contract than some kind of dissatisfaction with Mr Klemich. The defendant is unable to point to any fault on the part of the plaintiff in complying with its obligations under the contract.
The defendant contends that the plaintiff is not entitled to specific performance because the contract had been terminated by the non-fulfilment of the special condition.
The Meaning of the Special Condition

The special condition forms part of the contract by reason of clause 20(1) of the contract and schedule 1 to the contract.
The meaning of the condition is not entirely clear. The parties proceeded on the footing that the condition requires the defendant as vendor to obtain, before 30 June 2006, a grant of freehold in respect of the land the subject of the agreement. I do not agree with that interpretation. The defendant could not itself grant the freehold title. The grant could only be made by a Minister on behalf of the Crown. All that the defendant could do to assist the completion of the grant of a freehold title was to comply with the requirements of PLAF. In my opinion, the meaning and effect of the condition is that the defendant was required to do all that was required to obtain a grant of freehold title and to do so on or before 30 June 2006. In this case the condition required the defendant to do no more than comply with the requisitions made by PLAF in the letter sent to the defendant between 29 August and 28 October 2005, the letter referred to in paragraph 9 of these reasons. That letter required the defendant to
·pay fees and purchase money totalling $653.60;
·to produce the defendant’s duplicate copy of the Crown Lease; and
·lodge the surrender executed by it and endorsed with the consent of the underlessees and mortgagee.
When the contract was executed on 22 February 2006, no more had to be done than secure the consent of the Bank as mortgagee and the execution of an application to change the name of Mrs Heward. It is also plain that the task of complying with the requisitions of PLAF was an obligation to be discharged by the defendant. The terms of the special condition are clearly to that effect.
The special condition does not expressly impose any duty on the defendant as to how it should go about the process of “attending to the completion of the freeholding”. In my view, it was implicit in the special condition that the defendant was to use its best endeavours and act with all reasonable expedition in discharging that obligation. Such an implication was necessary to give business efficacy to the special condition: see Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 543 per Gibbs CJ and at 553 per Mason J; Butts v O’Dwyer (1952) 87 CLR 267 at 280, cited with approval by Mason J in Meehan v Jones (1982) 149 CLR 571 at 591; Paltara Pty Ltd v Dempster (1991) 6 WAR 85 at 88-9 and at 100. Mr Salvati had the task of arranging the execution of the documents necessary to comply with the requisitions of PLAF and to lodge those documents. I have already found he did not act promptly and, although he had the documents before 30 June, he did not lodge them before that date. The defendant is liable for the acts and omissions of Mr Salvati in failing to act with reasonable expedition in securing the necessary consents and lodging the documents before 30 June 2006. The defendant had more than four months to attend to that task, which was ample time in which to discharge this obligation.
Mr Thomson admitted the defendant had the responsibility to ensure that the special condition was satisfied and that Mr Salvati was attending to it. Further, Mr Thomson did nothing to ensure that the special condition would be satisfied. There is nothing to suggest that he contacted Mr Salvati to enquire as to progress and I find that he did not. That was the least he should have done. On any view, the defendant failed to act with reasonable expedition or to use its best endeavours to comply with the special condition.
The special condition has been inserted for the benefit of the plaintiff as purchaser. The plaintiff was aware that the defendant had applied to convert its Crown Lease to a grant of freehold title and that the defendant was in the process of complying with conditions imposed by PLAF. The plaintiff sought to purchase a freehold title and it was reasonable for it to have a certain date by which such a freehold title would be granted. In that way, a purchaser could limit the period in which it was contractually bound to purchase the land. The condition did not benefit the defendant as vendor because, long before it entered into the contract, the defendant had applied to convert its interest in the land from an interest as lessee under a Crown Lease to an interest as the owner in fee simple of the freehold. The application had been made as early as March 2004 and the defendant knew on 28 October 2005 that the application would be granted once it had complied with the requisitions of PLAF. The defendant had already satisfied most of the conditions when it entered into the contract on 22 February 2006.
The special condition made the grant of a freehold title to the defendant a condition precedent to the performance of the contract: Perri v Coolangatta Investments Pty Ltd at 541 per Gibbs CJ and at 552 per Mason J; Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153 at 157 per Gibbs CJ with whom the majority of the Court agreed.
The fact that the special condition was not satisfied did not bring the contract to an end but did no more than render the contract voidable at the election of either party: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 440-441; Gange v Sullivan (1966) 116 CLR 418 at 441. In Suttor v Gundowda Pty Ltd at 441, the Court said:
The provision in question is to be construed as making the contract not void but voidable. The question of who may avoid it depends on what happens. If one party has by his default brought about the happening of the event, the other party alone has the option of avoiding the contract. If the event has happened without default on either side, then either party may avoid the contract. But neither need do so, and, if one party having a right to avoid it does not clearly exercise that right the other party may enforce the contract against him.
To similar effect are the following remarks of Taylor, Menzies and Owen JJ in Gange v Sullivan at 441:
Whilst the effect of a condition must in every case depend upon the language in which it is expressed and a decision upon the meaning of one condition cannot determine the meaning of a different condition, the authorities cited do show a disposition on the part of courts to treat non-fulfilment of a condition such as that here under consideration as rendering a contract voidable rather than void in order to forestall a party to a contract from gaining some advantage from his own conduct in securing, or contributing to, the non-fulfilment of a condition bringing the contract to an end.
The question who may avoid the contract may, therefore, depend on the proper construction of the contract or on the question whether the failure to fulfil the condition was caused by the fault of one of the parties to the contract. If the condition is for the benefit of both parties, the contract is voidable at the election of either: Gange v Sullivan at 442. In that case, one party cannot waive the benefit of the condition if the other seeks to avoid the contract: Bedroff Pty Ltd v Rennie [2002] NSWSC 928. If the condition is solely for the benefit of one party, the contract is voidable at the option of that party who may waive the non-fulfilment of the condition: Suttor v Gundowda Pty Ltd at 441; Gange v Sullivan at 430; Perri v Coolangatta Investment Pty Ltd at 552. If one party has by default caused the condition to be unfulfilled at the stipulated date, that party is denied the right to affirm the contract while the innocent party retains the right to avoid or affirm the contract: Suttor v Gundowda Pty Ltd at 441; Amber Holdings (Aust) Pty Ltd v Polona Pty Ltd [1982] 2 NSWLR 470 at 475.
At common law, the defendant is, therefore, unable to rely on the failure to comply with a requisition of PLAF by 30 June for two reasons. The first is that it has, by its own default, caused the condition to be unfulfilled so that it is denied the right to avoid the contract while the plaintiff has the right to avoid it or affirm it. The second is that the special condition is wholly for the benefit of the plaintiff, who may waive the condition. The plaintiff has chosen not to waive the condition but to affirm the contract.
In the event, the documents required by PLAF were lodged at its office on 11 July so that all of the requisitions of PLAF were then satisfied. There is no provision to the effect that time is of the essence of the contract save in the case of two clauses, clauses 21 and 22, which respectively provide for enforcement of the contract on the default of the purchaser (clause 21) or on default of the vendor (clause 22). Clause 23 provides:
Time shall be of the essence of this agreement in its application of clauses 21 and 22.
Neither clause 21 nor clause 22 is relevant to the determination of the issues in these proceedings. Completion of the contract was to occur six months after the date of the issue of the certificates of title for the freehold land. In those circumstances, I find that time was not of the essence of the contract except in respect of clauses 21 and 22. The documents were lodged on 11 July and, therefore, were lodged within a reasonable time after 30 June 2006. For those reasons the special condition was satisfied.
The defendant sought to rely on clause 20 of the contract, which makes provision for the non-fulfilment of a special condition. It was in these terms:
Special Conditions
20.(1)     The special conditions (if any) referred to in schedule one and attached to      this agreement are incorporated into, and form part of, this agreement.
(2)If any special condition is conditional upon a specified event occurring on or    before a specified date, then subject to any provision in the special condition      to the contrary:
(a)     within two business days after the specified date or each of the                  specified dates, the Purchaser shall give notice (hereafter called “the           Purchaser’s notice”) to the Vendor stating:
(i)whether the specified event has occurred; and
(ii)if the specified event has not occurred, whether the Purchaser                   elects:
(A)to determine this agreement; or
(B)     to complete the purchase of the Land and the included   property notwithstanding that the specified even has not   occurred;
(b)     at any time after the specified date and before the Purchaser has given                the Purchaser’s notice, the Vendor may give notice (hereafter called               “the Vendor’s notice”) to the Purchaser requiring the Purchaser to           give the Purchaser’s notice within two business days of the service of         the Vendor’s notice;
(c)     if the Vendor’s notice so states, this agreement shall determine upon           the expiration of two business days, or such longer period as is stated             in the notice, after the service of the Vendor’s notice unless, before the         expiration of such period, the Purchaser gives notice to the Vendor             stating either:
(i)that the specified event has occurred; or
(ii)that the Purchaser elects to complete the purchase of the Land         and the included property notwithstanding that the specified           event has not occurred; and
(d)a party may give notices under this sub-clause from time to time.
(3)     A party may not rely upon its own failure to comply promptly and diligently     with any provision of a special condition, or upon any delay caused by any such failure, in order to determine this agreement under this clause.
(4)     If the Purchaser elects to complete the purchase of the Land and the included        property notwithstanding that a specified event has not occurred, this     agreement shall be read and construed as if the special condition had been       deleted from, and had never applied to, this agreement.
(5)     Upon the determination of this agreement pursuant to this clause, the deposit holder (if any) and the Vendor shall repay to the Purchaser the deposit and any other money paid by the Purchaser to the deposit holder or the Vendor under this agreement and thereafter neither the Vendor nor the Purchaser shall have any claim against the other directly or indirectly arising out of this agreement provided that notwithstanding the preceding provisions of this clause the deposit holder shall not be liable to repay any more money paid by the Purchaser to the Vendor.
In some but not all respects, clause 20 reflects the common law. For example, clause 20(3) accords with the common law principle that a party may not rely on its own default. However, given that the defendant seeks to rely on its delay and on its own failure to lodge the documents by 30 June 2006, it is barred by paragraph (3) of clause 20 from being able to rely on that clause. Furthermore, neither the plaintiff nor the defendant gave notice pursuant to paragraph (2) of clause 20 so that the defendant has an additional barrier preventing its reliance on clause 20.
For all of these reasons, the terms of the special condition have been satisfied. I turn to the question whether the plaintiff is entitled to an order for specific performance and to the consequences of the fact that on 24 July Mr Klemich recovered possession of the surrender document from PLAF.
Is the Plaintiff Ready and Willing?
Generally speaking, the plaintiff in an action for specific performance must establish that he has performed the contractual obligations to be performed on his part before the commencement of the action and that he is ready and willing to perform the future obligations under the contract: Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 619 per Mason CJ and Dawson J. See also Bahr v Nicolay (No 2) at 640 per Wilson and Toohey JJ. The plaintiff failed to plead that it was ready and willing to perform its contractual obligations. In addition, the defendant has not pleaded that the plaintiff was not ready and willing to perform its contractual obligations. As a general rule, the plaintiff must aver and prove readiness and willingness: Bahr v Nicolay (No 2) at 620 per Mason CJ and Dawson J but the issue can be examined in the absence of an averment of readiness and willingness. In Mehmet v Benson (1965) 113 CLR 295 at 307 Barwick CJ, with whom McTiernan J agreed, placed reliance on what had been established by the evidence rather than what had been pleaded. He said:
The question as to whether or not the plaintiff has been and is ready and willing to perform the contract is one of substance not to be resolved in any technical or narrow sense. It is important to bear in mind what is the substantial thing for which the parties contract and what on the part of the plaintiff in a suit for specific performance are his essential obligations. Here the substantial thing for which the defendant bargained was the payment of the price : and, unless time be and remain of the essence, he obtains what he bargained for if by the decree he obtains his price with such ancillary orders as recompense him for the delay in its receipt. To order specific performance in this case would not involve the court in dispensing with anything for which the vendor essentially contracted.
Referring to that passage, Wilson and Toohey JJ in Bahr v Nicolay (No 2) at 640 concluded that the absence of a plea of readiness and willingness to perform is not inevitably fatal to a plaintiff’s claim for specific performance. That is the approach which, in my view, reflects the current approach of courts, an approach that is more concerned to go to the substance of the matter. It is the approach which ought to be adopted in this case especially as it is likely that it will be some months before the plaintiff will be called upon to complete the contract.
Two further observations must be made. The first is that there is a reasonable argument that, in the absence of any plea by the defendant, there is no issue between the parties on the question of readiness and willingness: see the observations of Higgins J in Baird v Magripilis (1925) 37 CLR 321 at 330-1:
But there is no such defect in the plaintiffs’ case. Under the Queensland Rules and these pleadings, there was no issue joined on the subject of readiness and willingness. Under Order XXII., r. 12, an averment of the performance or occurrence of all conditions precedent necessary is implied (not expressed) in the statement of claim (see Form XII., “statement of claim”; Wilson & Graham’s Supreme Court Practice, p. 498); and when the performance or occurrence is denied, the condition precedent must be distinctly specified in the defence. The defendants must (under r. 14) raise by the defence all matters of fact which show that the claim of the plaintiffs is not maintainable; and all grounds of defence must be pleaded which, if not raised, would be likely to take the plaintiffs by surprise. The defence here merely denied all the allegations of the statement of claim (not the implications); there was no issue, and, therefore, no need of a finding, as to readiness and willingness; and, in my opinion, no evidence was even admissible, on that mere subject, at the trial. [Emphasis in original.]
Reference to Rules 99 and 100 of this Court shows that the plaintiff must state the remedy it seeks and the defendant must raise any special defence on which it relies and the grounds for that defence. A special defence is defined by Rule 100 to mean a defence other than a denial of facts alleged by the plaintiff. The plaintiff included as one of its prayers for relief an application for an order for specific performance. As the defence does not put in issue the entitlement of the plaintiff to an order for specific performance if it should otherwise succeed, it is unnecessary to consider the question of readiness and willingness. See also the discussion in Tsangaris v Gaymark Investments Pty Ltd (1986) 82 FLR 269 at 285. This approach must be weighed against the remarks in Bahr v Nicolay (No 2) to the effect that readiness and willingness must be pleaded but in that case their Honours did not have to consider Rules of Court such as Rules 99 and 100. There is much to commend the approach of Higgins J. The second observation is that it is unnecessary for a plaintiff to prove readiness and willingness in the case of an executed contract, which this contract is: Sydney Consumers’ Milk and Ice Co Ltd v Hawkesbury Dairy and Ice Society Ltd (1931) 31 SR (NSW) 458 at 462. However, it is unnecessary to rely on these considerations. Instead, I will consider whether the evidence establishes that the plaintiff is ready and willing to perform.
The evidence clearly shows the plaintiff has always been ready and willing to perform its obligations under the contract. It has done everything within its power to keep the contract on foot. It has performed all its obligations under the contract. It is not in default of any provision in the contract. It promptly executed the addendum (albeit to no avail), it lodged the caveat to protect its interest under the contract, and it still seeks to complete the contract. Finally, Mr Robertson, who appeared for the defendant, did not ask Mr Ciccarello any question as to the readiness and willingness to perform. The plaintiff has done all within its power to seek to complete the contract. There is not a shred of evidence that even suggests that it is not ready and willing to complete the contract. I find that the plaintiff is ready and willing to complete it. This is an appropriate case in which to make an order of specific performance.
The Uplifting of the Surrender Document
There is no evidence explaining what the defendant has done with the surrender document after Mr Klemich had recovered possession of it on 24 July 2006. Mr Klemich’s explanation to PLAF was that he was taking it back so that he could arrange for the plaintiff to endorse on the document its consent to the surrender. Mr Thompson said that Mr Klemich acted without any instruction from the defendant. I have some difficulty with that evidence, especially as the document has not been returned to PLAF. However, in the event, it is unnecessary to determine that question. The simple fact is that there is no evidence as to the present whereabouts of the document. It is reasonable to assume that the document is in the possession of the defendant or, if not, remains in Mr Klemich’s file, that is to say, the document is in the possession or power of the defendant. The defendant cannot rely on the fact that the surrender document is no longer in the possession of PLAF.
Conclusion

The plaintiff is entitled not only for an order for specific performance but for such other orders as are necessary to enable the completion of this contract. The Court is able to make an order compelling the defendant to produce the surrender document and lodge it with PLAF or, alternatively, to produce it to the plaintiff for lodging with PLAF. The defendant may be willing to produce the surrender document without the need for an order.
There is nothing to suggest that the failure of the defendant to comply with the three months time limit is a bar to the grant of freehold title. Mr D’Arginio’s evidence suggests that there is no bar to a grant of freehold title once the surrender is again produced to PLAF.
For all these reasons the plaintiff is entitled to an order for specific performance. It is unnecessary to deal with the other grounds upon which the plaintiff seeks redress. I will hear the parties as to the terms of the order for specific performance and as to the terms of any other order that might be necessary.