Pinemark Pty Ltd v Foley

[2002] QSC 395

SUPREME COURT OF QUEENSLAND

CITATION:

Pinemark Pty Ltd v Foley [2002] QSC 395

PARTIES:

PINEMARK PTY LIMITED
ACN 070 034 141
(plaintiff)
v
KELVIN PHILIP FOLEY
(defendant)

FILE NO/S:

SC No 4873 of 2002

DIVISION:

Trial Division

PROCEEDING:

Civil trial

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

29 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

18-19 November 2002

JUDGE:

White J

ORDER:

The plaintiff’s claim against the defendant be dismissed.1.    

The plaintiff pay the defendant’s costs of and incidental to the action to be assessed on the standard basis.2.    

The parties have liberty to apply.3.    

CATCHWORDS:

CONTRACTS – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – PERFORMANCE – where contract for sale of land not completed by settlement date in written contract – whether written contract was varied by oral agreement for an extension of the settlement date

CONTRACTS – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – ALTERATION OF WRITTEN INSTRUMENT – where written contract provided no alterations could be made except in writing – whether, on the evidence, an oral agreement was made to vary the contract

EQUITY – EQUITABLE REMEDIES – SPECIFIC PERFORMANCE – PARTICULAR CONTRACTS – SALE OF LAND – where purchaser sought extension of settlement date – whether extension was granted – where vendor subsequently terminated the contract for failure to settle on the agreed date – whether purchaser is entitled to specific performance of the contract

ESTOPPEL – GENERAL PRINCIPLES – whether oral agreement was made to vary the terms of written contract for sale of land – whether vendor was estopped from denying the oral agreement

CONVEYANCING – BREACH OF CONTRACT – BREACH BY THE PURCHASER: REMEDIES OF VENDOR –whether vendor had granted an extension on the facts – where the vendor had not granted an extension, the right of the vendor to terminate the contract for failure to settle

Forno v Wright (1989) 168 CLR 385
Nowrani Pty Ltd v Brown [1989] 2 Qd R 582
Tropical Traders Ltd v Goonan (1964) 111 CLR 41
Woodhouse Ltd v Nigerian Produce Ltd [1972] AC 741

COUNSEL:

Mr J B Sweeney for the plaintiff
Mr G Radcliff for the defendant

SOLICITORS:

McLaughlins for the plaintiff
Woods Hatcher for the defendant

1. The plaintiff is the trustee for the Elliston Family Trust.  It entered into a contract on 11 September 2001 to purchase house property at Burleigh Heads from the registered owner who is the defendant in these proceedings.  The settlement date was 9 April 2002.  There were two extensions granted and a third was sought.  Whether it was granted by variation to the contract or whether the defendant is estopped by his conduct from relying on failure to settle on the due date to terminate the contract are issues for resolution in these proceedings.

1. The defendant terminated the contract and claimed the deposit for failure by the plaintiff to settle on 19 April 2002 which he contends was the due date.  The plaintiff contends that a third extension of the time for settlement was granted and sues the defendant, seeking specific performance of the contract.  Both parties have claimed damages – the plaintiff for being kept out of the premises and the defendant for unquantified losses on any resale of the property.  Those damages claims were abandoned at the commencement of the proceedings.  Mr Sweeney for the plaintiff conceded that if his client were unsuccessful the defendant was entitled to the deposit.

1. The issues for determination are whether the contract between the parties was varied on 18 April 2002 to provide for settlement approximately one week later, or, alternatively, whether the defendant’s conduct on 18 April caused the plaintiff to assume that an extension would be granted if requested and acted upon that assumption to its detriment in as much as it did not obtain bridging finance to enable it to settle on 19 April.

The contract

1. The defendant owns domestic property at 24 and 26 Burleigh Street, Burleigh Heads.  On 11 September 2001 the plaintiff, through its director Mr David Elliston, entered into a written contract in standard REIQ form with the defendant, Mr Kelvin Foley.  The selling agent was L J Hooker, Burleigh Heads, through Mr Justin Smith.  A deposit of $10,000 was paid on a purchase price of $425,000.  The contract contained special conditions not relevant to these proceedings concerning an existing contract over the land.  Settlement date was stipulated to be 9 April 2002 at the Gold Coast with time being of the essence.  Mr Foley acted on his own behalf in the transaction.  There was no mortgage over the property and he held the title deeds.  The plaintiff’s solicitors on the conveyance were Attwood Marshall.

1. Although reliance was placed on cl 10.4(1) of the contract in the amended defence and counterclaim relating to a requirement that notice “under” the contract be in writing as precluding certain conversations from being contractual in nature, it was not pursued by Mr Radcliff in submissions, no doubt in light of Nowrani Pty Ltd v Brown [1989] 2 Qd R 582 per McPherson J (as his Honour then was) at 587.

Previous extensions of the settlement date

1. Mr Foley received the transfer documents for the property under cover of a letter from Attwood Marshall in March 2002.  On 2 April 2002 Ms Deana Gray, a paralegal conveyancer at Attwood Marshall, telephoned Mr Foley and sought an extension of time for the settlement of the contract to 16 April 2002 with time to remain of the essence and undertook to recalculate the settlement figures which she would put in writing.  There was, it seems, no follow-up letter.

1. On 10 April 2002 Ms Gray telephoned Mr Foley and sought a second extension to the time for settlement to 19 April 2002.  That request was followed by a letter dated 10 April in these terms:

“We refer to previous correspondence and confirm that our client’s financier will not be in a position to effect settlement on the due date.

Accordingly, we require an extension of time for settlement until the 19 April 2002 time remaining of the essence.

We enclose Settlement figures for that day and ask that you would kindly advise as to how you require cheques to be drawn.”

1. Mr Foley received the letter with the settlement figures appended on 11 April and then had a further telephone conversation with Ms Gray.  He said that he would check her settlement figures and if anything was wrong would be in contact with her but otherwise agreed that settlement would be effected at 3.30 pm on Friday, 19 April 2002 at the offices of Attwood Marshall.  Mr Foley wrote the time and date at the top of the letter of 10 April.

Events of 18 April 2002

1. A day or two prior to 18 April, Mr Elliston, who is himself a licensed real estate agent, contacted Mr Smith to tell him that his financier would not have the necessary documents ready for settlement of the contract on 19 April and requested him to seek an extension of time for settlement from Mr Foley.

1. On the morning of Thursday, 18 April, Mr Foley was taking paintings and furniture from his home at 24 Burleigh Street to his art gallery in Southport in preparation for vacating the property the following day.  He received a telephone call from Mr Smith, the agent on the sale, on his mobile phone whilst he was driving in heavy traffic at 10.27 am.  The precise time of some of these telephone calls is known because the parties have some telephone records.  The terms of this conversation are important for the outcome of the proceedings.  Mr Smith had spoken with Mr Foley only once after executing the contract on 11 September 2001 but not concerning the contract.  Mr Smith and Mr Foley had attended a real estate course together in the early 1990’s and had some continuing acquaintanceship.  Mr Elliston said he asked Mr Smith to contact Mr Foley because he knew him. 

1. Mr Smith was firm in his evidence that he was not contacting Mr Smith as agent for the purchaser.  He said that he was trying “to keep the deal together”.  He was frank that in addition to the commission earned on the sale, he hoped to earn further commissions in the future from Mr Elliston’s plan to build two duplex dwellings on the two blocks.  Mr Smith told Mr Foley that he had been contacted by Mr Elliston to talk to Mr Foley about an extension.  He was then aware that the contract had not settled on the due date but did not know the details of previous extensions.  According to Mr Smith, he assured Mr Foley that the contract would settle but that some difficulty was being experienced with the bank documents and that Mr Elliston would like “if possible, to settle a week later”.  Mr Smith said that Mr Foley was unhappy about what was happening but said he was “okay with the extension” and that he did not want to have to readjust the settlement figures again.  Mr Smith said he responded that Mr Elliston would be grateful for the extension and that he was sure that the settlement figures would not be an issue.  He mentioned that Mr Elliston’s solicitors would write to Mr Foley to “reaffirm it so it was all in writing”, t/s 21 l 10.  He told Mr Foley that he would speak to Mr Elliston about their conversation.

1. Mr Smith immediately telephoned Mr Elliston to tell him that he had his extension but that he should contact his solicitors promptly to write to Mr Foley.

1. Mr Foley’s recollection of the conversation is different.  He said that he was stressed taking a telephone call driving a van in heavy traffic although he concedes that he did not tell Mr Smith this.  Mr Foley said that Mr Smith was very persuasive and although he (Foley) had real concerns as to whether the contract would settle after previous requests for extensions and what he saw as different excuses he “reluctantly in that first conversation and regretfully … agreed to listen to a further proposal for an extension”, t/s 89 ll 14-16.  Mr Foley was most concerned that the approach for the further extension had come from the real estate agent and not from the purchaser’s solicitors as in the past and he was generally unhappy with the conversation.  As soon as he returned to Burleigh he telephoned Mr Smith at 10.45 am.

“I said that I was not happy with the previous conversation I had with him, and that I did not want to be bound to what was said.  This matter, I said, is for the purchaser’s solicitors to contact me and in a formal way so that I can respond back to them.  So I expected a written letter, a letter of request and something that I could respond to in writing.  It was a very serious matter and I did not believe it was Justin’s business to be involved with it, and I said that I am going to seek legal advice about it and he said, ‘Well, you do what you have to do.  It should be between the purchaser’s solicitors and you’, and we ended the conversation”, t/s 84 ll 1-15.

1. Mr Smith’s account in evidence-in-chief of this second conversation with Mr Foley is as follows:

“Kel said to me that he was getting a bit nervous about the whole thing.  It was all a bit frustrating.  I said to him that I was sure that it was frustrating to David as well, and I reaffirmed with him that it would be that timeframe and no longer, and he said, “Yeah, okay”, and I said, “Well, make sure that when you respond back to them that – if you are okay with the extension that there will be no more extensions past the date”, and that was the course of the second phone call.

Did he discuss during that what he was going to do?  What his next step was going to be?—He said he was probably getting a bit out of his depth and that he would may need [sic] a solicitor.  I said to him, “that’s fine, Kel.  Do what you have to do in regards to the solicitor.”, and what I meant by that was, you know, if you need to get some advice, get some advice”, t/s 22 ll 14-30.

1. Mr Foley immediately telephoned his solicitor, Ms Pam Roberts, at Woods Hatcher,  told her of his two conversations with Mr Smith and that she was probably going to be contacted by Mr Elliston’s solicitors for a further extension since the purchaser was unable to settle the next day and he wanted advice.

1. At 12.20 pm Mr Smith telephoned Mr Elliston and told him that Mr Foley “was a bit nervous or jittery about it all” but that “he was still okay with everything”, t/s 22 ll 40-42, and that he should make sure that his (Elliston’s) solicitors wrote about the extension to Mr Foley.

1. Mr Foley was told by Ms Roberts to attend at the firm’s recently opened office on the Isle of Capri where Danielle Urhane, a paralegal conveyancer who had not met Mr Foley previously, would look after him.  Ms Roberts proposed to drive there from the Coomera office.  Ms Urhane saw Mr Foley in her office at about 12.00 noon.  He told her that he had been talking to the real estate agent and that there were problems with the purchaser’s finance and he was going to be asking for a further week before settlement.  He told Ms Urhane that he had already given extensions and did not wish to give another week to the purchaser although, when pressed by Mr Sweeney, said that he had not then made up his mind completely.  Mr Sweeney sought to make something of the failure by the defence to call Ms Roberts as a witness.  She did see Mr Foley at the Isle of Capri office but after Ms Urhane had put Mr Foley’s instructions to Ms Gray.  I draw no adverse inference.

1. Ms Urhane telephoned Ms Deana Gray on her direct line number at Attwood Marshall at 12.12 pm.  The telephone records show that this call lasted 58 seconds.  Ms Urhane believed that she spoke directly to Ms Gray.  The plaintiff has produced a copy of an email message from Attwood Marshall’s receptionist to Ms Gray sent at 12.10 pm (the time difference is irrelevant and probably attributable to different clock settings):

“Danelle [sic] from Woods Hatcher called, please phone on 55045366 re: Pinemark P/L”.

1. Ms Gray’s evidence was that she had been contacted by Mr Elliston sometime before 11.00 am on 18 April to seek an extension from Mr Foley to 26 April and to prepare new settlement figures.  Her Time Task Report of 12.40 pm expressed the request as “[D]avid rang asked me to get ext til 26/4 letter to vendor and new figs.”  Ms Gray was adamant that she did not speak to Ms Urhane until late that afternoon at about 4.30 or 4.45 pm.  She produced her diary to show that she had appointments with clients at 11.00 am and 11.30 am which would have extended beyond the time Ms Urhane said that they spoke.  She said it was her practice to direct her calls to reception when in conference with a client and not to take calls.

1. Ms Urhane was in no doubt that she spoke with Ms Gray whilst Mr Foley was in her office at about 12.15 pm.  She knew Ms Gray from previous conveyancing transactions.  Mr Foley understood Ms Urhane to be speaking with Ms Gray and heard her side of the conversation.  It is accepted by Mr Sweeney that Ms Gray was mistaken about her recollection of the time of her conversation with Ms Urhane because by 3.30 pm Mr Elliston had been contacted by Attwood Marshall, and this could only have been by Ms Gray, and told that there was no extension to the settlement date and he had telephoned Mr Smith to contact Mr Foley.  Mr Smith’s telephone records show that this call was from Mr Elliston at 3.36 pm.

1. It seems likely that when Ms Gray read the email message to call Danielle at Woods Hatcher about Pinemark she telephoned back immediately knowing that the contract was due to settle the next day and that Mr Elliston had asked her to seek an extension.

1. Ms Urhane and Ms Gray are not in agreement about the content of their conversation.  To the extent that he is able Mr Foley generally supports Ms Urhane’s evidence.  He was not present in the courtroom whilst Ms Urhane gave her evidence.  I accept their evidence.  Ms Urhane said that she advised Ms Gray that she had Mr Foley with her, had instructions to act on his behalf in relation to the Pinemark conveyance, noted that settlement was due to be effected the following day and that Mr Foley had heard that Attwood Marshall’s client might be requesting a further extension and that Mr Foley had instructed that he did not wish to grant any further extensions.  In response to Ms Gray’s answer that there was some “hold up” about documents with the bank, Ms Urhane said that since it was an eight month contract documentation ought to have been attended to by this time.

1. According to Ms Gray, when she did speak with Ms Urhane, Ms Urhane introduced herself as not holding instructions to act for Mr Foley but had done so in the past and was telephoning to inquire “what the problem was”.  Ms Urhane said that she would never telephone another firm of solicitors and make inquiries saying that she did not act for “the client”.  I accept this.  She denies that Ms Gray told her that an extension to the following week had already been given orally by Mr Foley.  I accept her evidence.  Her contemporaneous file note states that she advised Ms Gray that Woods Hatcher acted for Mr Foley and that he did not agree to an extension of time for settlement.  Mr Sweeney queried why Ms Urhane would not have confirmed the refusal of the extension in writing.  Ms Urhane’s response was that no request had, in fact, been received from Attwood Marshall and she waited all the afternoon for one to arrive.  The following morning, still not having heard anything, she faxed a letter to Attwood Marshall to the attention of Ms Gray at about 9.30 am in the following terms:

“We refer to the above matter and to our telephone discussions with you yesterday and confirm we hold instructions to act on behalf of Mr Foley.  Please direct all correspondence to our client, to our office.

We confirm that settlement is due to be effected today at our offices.”

Ms Urhane’s reference to “discussions” was to one occasion only.

1. Ms Gray prepared a letter to Mr Foley at his residential address dated 18 April with settlement figures for 19 April to be settled on 26 April.  The computed time indicates that the settlement document was generated at 12.38 pm on 18 April.  Ms Gray said the letter was written at the same time. It is in the following terms:

“We enclose Settlement figures and cheque details for the 26 April 2002.  Please note that the adjustments are from the 19 April 2002.

We ask that you would kindly grant our client an extension of time for settlement until the 26 April 2002 time remaining of the essence.”

The letter was apparently sent in the ordinary course of the afternoon post on 18 April.  There is no doubt that this letter is puzzling in that it was addressed to Mr Foley and not to Woods Hatcher and was posted and not sent by some quicker means.  There was no evidence that Mr Foley had a fax machine but Woods Hatcher certainly did.  It was the request which Ms Urhane and Mr Foley said they were waiting for all the afternoon of 18 April.  Ms Gray said she managed about 800 conveyancing files so the explanation may be oversight. The letter written by Attwood Marshall on 19 April and faxed at 4.09 pm to Woods Hatcher in response to the morning faxed letter enclosed Attwood Marshall’s letter to Mr Foley of 18 April and Mr Smith’s account of his conversation with Mr Foley and maintained that the extension had been granted orally on the morning of 18 April to Mr Smith who had, according to the letter, “negotiated the extension on behalf of the vendor and the purchaser”.  The purchaser was ready and willing to settle on 26 April.  This fax was sent to the Coomera office of Woods Hatcher although the letter sent in the morning at 9.25 am clearly asked for a reply to be sent to the Isle of Capri office and gave its fax number.

1. When settlement was not effected by 5.00 pm on 19 April 2002 Woods Hatcher faxed the following to Attwood Marshall at 5.20 pm:

“We refer to the above and to your correspondence to our client of April 10 and note that settlement was not effected today and we have received no correspondence from you.

We are instructed to advise that our client elects to terminate the contract and declares the deposit forfeited pursuant to clause 9 of the standard conditions.  We reserve our client’s rights under the clause generally.

Please authorise the agent to release the deposit to our client.” 

1. After Mr Smith had prepared his account of what had occurred between himself and Mr Foley and before Attwood Marshall sent it to Woods Hatcher (to the Coomera office) he read it over to Mr Foley who did not agree with Mr Smith’s recollection of their conversations.  Mr Smith then provided the letter unaltered to Attwood Marshall.  Relevantly, he wrote:

“… I contacted Kel Foley, Thursday morning to discuss the possibility of settlement taking place Thursday the 25 April 2002.  I explained to Kel, that David, was having problems with his bank documents and that he would require an extension.  Kel said that he understood and that he was okay with the new date but did not want to have to adjust the settlement figures again.  I said I was sure David would be grateful for the time extension and would be happy to wear the extra rates, etc.

I then rang David to confirm the arrangement and to confirm settlement figures to stay as is.  He said he was.

About half an hour later Kel, called me to express reservations about extending and he should seek some legal advice perhaps.  I told Kel to do what he had to do.  I suggested that when Attwood Marshall wrote to him to ask for the extension, to express in writing that the 25^th April would be it and that he would not extend past that date.  Kel said that he was going to do that.”

1. Mr Smith sought to explain that he used the word “ask” to mean a mere formality and that from time to time between execution and settlement real estate agents became involved in contractual variations and that he regarded the involvement of the solicitors as a mere formality.  In the amended reply and answer the plaintiff pleads in paragraph 4 that Attwood Marshall “mistakenly” used “the words ‘grant our client an extension’ rather than the words ‘confirm the grant of an extension’” in the letter of 18 April sent by Ms Gray.  This was not raised with Ms Gray in evidence but when both “agents” of the plaintiff use the word “ask” there are difficulties establishing a concluded agreement.

1. By the time Mr Smith prepared a statement on 16 May 2002 for the benefit of his principal, L J Hooker, Burleigh Heads, he wrote that he told Mr Elliston to contact Attwood Marshall “to get a letter off confirming the extensions as the vendor was starting to get a bit annoyed”.  As to the second conversation with Mr Foley, Mr Smith said he told Mr Foley “you will get a letter from Attwood Marshall  confirming the extension and you should reply to them, advising that you will not give any further extensions”, (my italics).

Was the contract varied?

1. There is no doubt that after the extension to 19 April, time continued to be of the essence and performance had to take place by 5.00 pm on 19 April, Tropical Traders Ltd v Goonan (1964) 111 CLR 41 per Kitto J at 53. If there was a concluded fresh agreement about the due date for performance it had to be supported by consideration. The contract was still executory. The benefit conferred on the purchase was obvious – it was not required to tender the settlement monies until after 19 April. The seller had the modest monetary benefit of the rates calculations standing at 19 April and the use of the premises for a further period. There is no contention that there was no, or, insufficient consideration.

1. Mr Smith regarded himself as a facilitator between the parties to keep the contract alive.  Mr Elliston, although not asked, probably did not think about it but if he did, would have characterised Mr Smith as his agent insofar as he authorised him to ask Mr Foley about an extension.  Attwood Marshall described Mr Smith as negotiating the extension on behalf of both purchaser and seller – always an awkward role.  Mr Foley regarded Mr Smith, as the contract noted, as being appointed as agent on the contract and it troubled him greatly that Mr Smith was taking on a role that he believed was not his.  On the view I take of the evidence it does not greatly matter.  I accept Mr Foley’s account of his conversations with Mr Smith where it differs from Mr Smith’s evidence. 

1. Mr Smith might have thought that he had virtually obtained Mr Foley’s agreement to an extension for “Thursday or Friday” of the following week after the first converation but knew that it was for the purchaser’s solicitors to make the request in light of Mr Foley’s response that he was prepared to listen to a new request.  Further, Mr Smith knew that he had to obtain Mr Elliston’s agreement to the settlement figures remaining unchanged from 19 April even though that agreement was likely.  Any authority which he had is not said to go that far.  As I appreciate Mr Foley’s evidence, he was concerned that he had committed himself to entertaining yet another request for an extension of time rather than refusing it outright.  The conclusion to which I have come is that there was no concluded agreement to extend time for settlement on 18 April beyond 19 April.

Estoppel

1. The alternative basis upon which the plaintiff seeks to have the defendant’s termination of the contract set aside is the conduct of Mr Foley on 18 April which allegedly induced the plaintiff, through Mr Elliston, to assume that he would grant an extension of time for settlement to 26 April or, at least, that the purchaser would not be held to settlement of the contract on 19 April as had previously been agreed.  The question then is whether Mr Foley allowed that assumption to arise.  Mr Foley did say that he would entertain a request for an extension in the first conversation with Mr Smith on 18 April.  But that was all it was.  Both Mr Smith and Mr Elliston were keen for the contract to settle successfully.  That there were other extensions given previously, no doubt encouraged optimism.  Mr Foley was not seeking to avoid settlement.  Mr Smith’s personality as he presented in the witness box was that of a confident, rather urbane, man.  Mr Foley said he was persuasive on 18 April.  Mr Foley seemed a much less sophisticated person.  If Mr Smith thought he had ensured the extension at the first conversation, by the conclusion of the second conversation, a half an hour later, he should have been alerted to a changed situation in which obtaining the extension was no mere formality.  If it be accepted that it was at 12.20 pm that Mr Smith first conveyed Mr Foley’s concerns to Mr Elliston, and said that Mr Foley was still “okay” for the extension, he was not relating what Mr Foley said.

1. Ms Gray knew that there would be no extension by about 12.15 pm on 18 April or shortly thereafter or, at least, that the purchaser was to be held to settlement on 19 April.  The want of urgency in the office of Attwood Marshall was said to be explicable on Mr Smith’s assurance of an oral extension from Mr Foley conveyed by Mr Elliston.

1. The plaintiff maintained that had it been informed in reasonable time that there was to be no extension of time or that settlement was to be insisted upon by 5.00 pm (by cl.5.1(1) to the contract) on 19 April, bridging finance could have been obtained at short notice.  Evidence was given by Mr Chris Martin, a former bank officer and now finance broker, that he may have been able to raise $330,000 had he been alerted by about 11 o’clock on 18 April.  As each hour passed it would become more and more difficult to do so.  On 18 April the purchaser had about $90,000 in cash in its own account and would need approximately $330,000 to settle.  Mr Elliston was confident that he had other avenues of immediate finance.  Neither Mr Martin nor Mr Elliston were contradicted.  In the light of that evidence there was a real chance that had Mr Elliston known of the need to settle on 19 April he would have been able to obtain the balance purchase price, Forno v Wright (1989) 168 CLR 385 at 346-7 per Deane J. All the same, there is an air of unreality about the purchaser’s position. Mr Elliston was quite vague about times and conversations but it seems he contacted Mr Smith on Tuesday or Wednesday reasonably certain that his company could not settle on 19 April. As late as 10.30 am Thursday, 18 April, the day before settlement, he had heard nothing yet he neither contacted Mr Smith, his solicitors or Mr Foley himself. He was at a real risk of losing the contract and his deposit and in the light of Mr Martin’s evidence that 11 o’clock was as late as putting in train successfully the short term loan could be, in order to settle by the next day, Mr Elliston’s conduct was surprisingly lacking in urgency.

1. Echoing the words of Lord Hailsham LC in Woodhouse Ltd v Nigerian Produce Ltd [1972] AC 741 at 757, if the conversation between Mr Smith and Mr Foley on 18 April was insufficient to vary the contract it was insufficient to found an estoppel and there was no subsequent conduct by Mr Foley such as to induce the purchaser through either Mr Smith or Mr Elliston to assume that time was not of the essence insofar as it related to settlement on 19 April.

1. The orders are:

1.          the plaintiff’s claim against the defendant be dismissed;

2.          the plaintiff pay the defendant’s costs of and incidental to the action to be assessed on the standard basis;

3.          the parties have liberty to apply.