Riggall v Thompson
[2007] QDC 246
•14 September 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Riggall & Anor v Thompson [2007] QDC 246
PARTIES:
BRIAN NOEL MANSON RIGGALL and JANE REIMAN RIGGALL
Applicants/Plaintiffs
EMMA THOMPSON
Respondent/Defendant
FILE NO/S:
BD422/07
DIVISION:
Civil
PROCEEDING:
Application for summary judgment
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
14 September 2007
DELIVERED AT:
Brisbane
HEARING DATE:
JUDGE:
Nase DCJ
ORDER:
CATCHWORDS:
COUNSEL:
Mr P. A. Looney for the plaintiffs
Mr M. Martin for the defendant
SOLICITORS:
Tucker Cowan Solicitor for the plaintiffs
Le Mass Lawyers for the defendant
Introduction
Emma Thompson, on 9 June 2006, purchased Mr and Mrs Riggall’s unit at auction. Her bid of $817,500 on the day exceeded the second highest bid by $500.
The standard contract of sale subsequently executed by Emma Thompson as purchaser and the Riggalls as vendors was varied to allow for a deposit of $48,750 (representing 5% of the contract price) and for a 60 day period to settlement. These terms varied the usual requirements of a deposit of 10% of the purchase price and a 30-day period to settlement. The variations were made at the request of the purchaser because she needed additional time to conclude a property settlement with her former husband. In return for these variations she consented to the deposit ($44,000[1]) being paid over immediately to the vendors. To avoid confusion with any other contract proposed, this contract will be called the June contract.
[1]At the time of contract the vendors accepted a deposit of $44,00
In fact, both the purchaser, Thompson, and the vendors, the Riggalls, were under financial constraint and ultimately the sale of the property unravelled because Thompson was unable to raise sufficient funds to complete the sale. In terms of detail the time for settlement was extended on a number of occasions. Finally, however, when Thompson was unable to settle on 17 October 2006 (a date a little over four months after the contract had been signed), the Riggalls terminated the contract.
The property was sold at auction on 24 November 2006. This contract settled on 22 December 2006 for $765,000.
On 14 February 2007 the Riggalls commenced proceedings in the District Court claiming damages for breach of the contract of sale. The claim was based on Thompson’s failure to settle the contract on 17 October 2006. The damages claimed in the action include the difference between the contract price and the price for which the property was eventually sold, a sum of $52,500, as well as legal and real estate expenses, other incidental expenses,[2] and claims for loan interest, loan default interest and late fee payments from August 2006 to December 2006.
[2]Body corporate fees, Brisbane City Council rates, and electricity charges incurred in August, September, November 2006 and January 2007.
The Riggalls also assert an entitlement to forfeit the deposit paid over to them. The total damages claimed amount to $119,315.28.
Thompson, by way of defence, asserts the parties agreed to rescind the June contract, and agreed to enter into a substitute contract on the same terms and conditions as the original contract.[3] She says Brian Riggall asked her to enter a substitute contract because of a tax advantage to them if the contract had the later date.
[3]Defence paragraphs 6, 8, 9, and 10.
Thompson also asserts a set off for the deposit paid (the $44,000) and for breach of an agreement to allow her to place a tenant in the premises until settlement. This latter assertion was not maintained at the hearing before me.
The application before me is for summary judgment. On such an application judgment may be given for the claim, or for part of it, if the defendant has no real prospect of successfully defending it, or a part of it, and if the court is satisfied there is no need for a trial of the claim, or the part of it.[4]
[4]UCPR 292.
Two arguments are put against the application. The first is that the Riggalls, as vendors, and Thompson, as purchaser, agreed to rescind the June contract before the failure to settle on 17 October 2006. The second argument is that the plaintiffs (the Riggalls) failed to mitigate their damages when they subsequently sold the unit for $765,000, a price that is lower than the original contract price by $52,500. This argument affects the assessment of any damages, and in that sense assumes Thompson is otherwise liable in contract.
The issues
The issues are shaped by the nature of an application for summary judgment. The first issue is whether the evidence placed before the court establishes the failure to settle on 17 October 2006 (and, consequently, the breach on which the claim is based), and whether a letter of 24 November 2006 from the Riggalls’ solicitor[5] to the solicitor then acting for Thompson, terminated the contract. The second issue is whether, in terms of the summary judgment rule,[6] Thompson has no real prospect of successfully defending the claim (or part of it) and the court is satisfied there is no need for a trial of the claim (or part of it). The second issue involves an examination of the legal consequences of Thompson’s assertion, in her affidavit, that she agreed with the male applicant (Brian Riggall) to rescind the contract before the breach relied upon by the applicants (17 October 2006).
[5]Ebsworth & Ebsworth lawyers, who are referred to for convenience as E & E in the balance of the judgment.
[6]UCPR 292.
For the purposes of the application for summary judgment it is generally true that the sworn evidence of a respondent to the application must be accepted. In this case that means it must be accepted that Thompson verbally agreed with Brian Riggall to enter into a new contract of sale on the same terms and conditions as the June contract. The replacement of one contract by another necessarily entails a termination of the replaced contract. The principle question in this case therefore is whether the agreement between Thompson and Brian Riggall to execute a replacement contract immediately brought the June contract to an end, or whether the agreement was to execute a replacement contract and a formal deed of rescission in the future, which events would then, and only then, operate to replace and rescind the June contract. In posing that question it must be remembered that an applicant for summary judgment must satisfy the court the respondent/defendant has “no real prospect” of successfully defending the claim and that there is no need to conduct a trial of the issue.
A second set of issues arise out of the assessment of damages, including an argument the resale of the property at a substantially lower price creates a real issue about whether the vendors appropriately mitigated their loss.
The chronology of events
The communications between the parties were mostly recorded. The record of their communications, which extends to approximately 50 email or facsimile letters, provides a satisfactory evidentiary framework against which the application may be determined. The following general discussion draws on that record.[7]
[7]Appendix 1 to this judgment is a general chronology and summary of the correspondence.
Discussion
Thompson, as I have said, was the highest bidder at auction. Her bid was $817,500. The second bid was $817,000. On the same day (9 June 2006) she entered a contract of sale for the property. The standard conditions of auction were varied to allow her to pay a deposit of $48,750 (representing 5% of the purchase price), and the settlement date was agreed at 60 days from the contract date. Thompson said these variations were made at her request. Brian Riggall said they agreed to the variations provided the deposit was released to them immediately. As a consequence the deposit paid by Thompson of $44,000 was duly released to the Riggalls.
At the time Thompson bid for the unit she did not have the means to pay for it. What she had was a hope or belief that by the time for completion she would be in a position to complete. In the letters afterwards written by her solicitors (Le Mass Lawyers), on 25 September 2006 (Appendix, item 40), 19 October 2006 (Appendix, item 47), and 25 October 2006 (Appendix, item 49) a frank admission is made that she was unable to complete the contract at any time. The problem for her was that the disputed property settlement with her husband remained unresolved, leaving her in the position where she was unable to raise the funds necessary to complete the contract. While she persuaded her mother (Lorna Thompson) to use her own home as security, she was unable to persuade her father, who was unwilling to offer the home as security. Ultimately, her effort to finance the purchase by using her parents’ home as security was unsuccessful.
As a consequence, to give herself more time to obtain finance, she requested extensions to 11 September 2006 (three months from contract), then to 20 September 2006 (21 September 2006). The vendors insisted on settlement on 21 September 2006, however, she was not able to settle. The vendors elected to affirm the contract (3 October 2006[8]) and, stipulating that time was of the essence, nominated that settlement was to take place on 17 October 2006. 17 October 2006 was more than four months after contract (9 June 2006). Thompson failed to complete on 17 October 2006. The vendors terminated the contract (24 October 2006), and subsequently sold the property at auction.
[8]Appendix item 42.
Analysis and conclusion
The only point argued[9] on behalf of Thompson is a claim the contract had been terminated (rescinded) by mutual agreement at a time before 17 October 2006. While it is undoubtedly true that Brian Riggall asked Thompson if she was prepared to execute another contract of sale in substitution for the June contract,[10] and that Thompson was prepared to execute a new contract in identical terms, that agreement did not carry the consequence that the June contract terminated then and there.
[9]The point the vendors did not mitigate their loss affects only the assessment of damages.
[10]Because the believed there was some tax advantage to him if a later date was on the contract of sale.
Once a replacement contract was brought into existence, it would be necessary to terminate the June contract. The mechanism for terminating the June contract was to be by a deed of rescission. This was an appropriate mechanism to adopt as a third person (Lorna Thompson) was proposed as the purchaser in the proposed replacement contract. After the initial approach by Brian Riggall, and Thompson’s agreement to execute a replacement contract, both parties continued to treat the June contract as binding on them.[11] Both continued to discuss the proposed replacement contract.[12] The agreement between Brian Riggall and Thompson was an agreement to enter into a replacement contract, a process which involved executing a deed of rescission to validly terminate the June contract when the replacement contract came into existence.
[11]Most strikingly by negotiating extensions of time for completion of the June contract. Thompson, in one letter, said the extension was under the June contract, and said the June contract must be cancelled when the replacement contract and deed of rescission was signed (Appendix, item 25 letter 11 November 2006).
[12]For example, the identity of the new purchaser if it was not to be Thompson, and the terms of the contract: see Appendix, item 34 letter 20 September 2006.
What the parties did on this occasion merely reflects the practices adopted in land transactions, where negotiations for the sale of land are commonly regarded as “subject to contract”.[13] In fact, no replacement contract ever came into existence and it did not become necessary, at any point in time to formally rescind the June contract.
[13]See especially McHugh JA in G. R. Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1987) NSW Conv R 55-234 at 56,984.
No other interpretation of the negotiations between the parties is reasonably open, and there is no real prospect of successfully defending the claim on the basis suggested in argument.[14] I am satisfied there is no need for a trial on this part of the claim.
[14]In reaching that conclusion I have followed the approach endorsed by the Court of Appeal in Deputy Commissioner of Taxation v Salcedo [2005] QCA 227.
The counterclaim
No argument was addressed to me on the counterclaim, although by implication the applicants/plaintiffs also apply for the counterclaim to be dismissed.
The counterclaim is based on conversations that occurred between the parties before contract. As far as I can tell, those discussions did not rise above the level of negotiation, and they were not written into the contract of sale signed by the parties. In the circumstances, the better course is simply to strike out the counterclaim.
Damages
I have reached a different conclusion on the assessment of damages. I will endeavour to explain why briefly:
1. I believe the respondent/defendant should be given an opportunity to explore the assertion the vendors disposed of the property at a price substantially below its true value, and that as a consequence they failed to mitigate their loss.
2. I am unsure of the status of the $44,000 paid as deposit. Opposing assertions were made by the parties as to the correct treatment of this item, but no considered arguments were placed before me.
3. The damages claim includes a large number of individual claims for default interest and the like; the respondent/defendant should be entitled to explore at trial whether the applicants/plaintiffs are entitled to damage claims for all these items.
In these circumstances, summary judgment will be given in favour of the applicant/plaintiffs on liability with damages to be assessed at trial.
Orders
It is declared that:
(a) the contract of sale dated 9 June 2006 between the applicants/plaintiffs as vendors and the respondent/defendant as purchaser was breached by the respondent/defendant by her failure to complete the contract on 17 October 2006; and
(b) that in consequence of that breach the applicants/plaintiffs validly terminated the contract by letter dated 24 October 2006 from Ebsworth and Ebsworth lawyers to Le Mass solicitors.
Paragraphs 2(d) and (e), paragraph 11, and the words “and her percentage of loss of rent for the period that the premises could have been rented out for” in paragraph 12 are struck out of the Defence.
The matter is adjourned to the callover list.
APPENDIX 1
Correspondence Summary:
| No. | Date/Time | Summary |
| 1. | 2/8/06 at 3.12 pm Email letter E & E to Thompson | 1. Refers to a telephone conversation of 31/7/06. 2. Says that the settlement date in the contract is 8/8/06, and asserts a right to terminate the contract and forfeit the deposit if Thompson is unable to settle. 3. Asks for any proposal for an extension by 4.10 pm on 3/8/06. |
| 2. | 3/8/06 at 10.16 am Email letter Thompson to E & E | Thompson refers to a verbal agreement with the Riggalls to settle within three months of the date of contract, and to B. Riggall’s confirmation of that agreement that morning. |
| 3. | 3/8/06 at 2.11 pm Email letter E & E to Thompson | To extend time for 30 days (until 7 September 2006) conditional on 1. Time to remain of the essence. 2. Payment of a sum of $3,406 (or $3,046) said to cover additional interest payments on the property for which the Riggalls will become liable. |
| 4. | 3/8/06 at 3.56 pm Email letter Thompson to E & E | 1. Refers to possible cancellation of existing contract and substitution of a new contract and request advice “if this will be happening”. 2. Request clarification as to whether $3,406 or $3,046 is the correct figure. |
| 5. | 3/8/06 at 4.53 pm Email letter E & E to Thompson | 1. Amount clarified as $3,406. 2. Says that whether the contract can be rescinded depends upon whether the contract has been stamped. |
| 6. | 3/8/06 at 5.52 pm Email letter Thompson to E & E | Advises the contract is still in the yet to be assessed queue. |
| 7. | 4/8/06 at 9.35 am Email letter E & E to Thompson | E & E observe that it is probably too late to do anything as the Stamp Office will not release the contract until duty has been paid. |
| 8. | 4/8/06 at 10.57 am Email letter E & E to Thompson | E & E ask whether Thompson accepts the extension offered by the vendors. |
| 9. | 4/8/06 at 2.10 pm Email letter Thompson to E & E | Thompson says she is not unhappy in principle with the arrangement offered, then requests confirmation as to whether the existing contract is to be cancelled and a new one entered. She says that she can cancel the contract but would need to advise them as soon as possible. |
| 10. | 4/8/06 at 2.11 pm Email letter E & E to Thompson | E & E will obtain instructions from the Riggalls. |
| 11. | 4/8/06 | Advises: 1. The settlement date will be extended to 7 September 2006 provided the $3,406 is paid on or before 5 pm on Monday 7 August. 2. “Once you receive the contract back from the Office of State Revenue, our client will arrange to enter into a new contract with you.” 3. Seeks urgent confirmation of the above matters. |
| 12. | 10/8/06 at 4.10 pm Email letter E & E to Thompson | Asks to be advised who the new buyer is so the new contract and deed of rescission can be prepared. |
| 13. | 18/8/06 at 3.08 pm Email letter E & E to Thompson | Requests a response to their email of 10/8/06. |
| 14. | 28/8/06 at 9.32 am Email letter Thompson to B. Riggall | Advises that the contract should be returned to her by the Office of State Revenue before the end of the month. |
| 15. | 28/8/06 at 11.33 am Email letter B. Riggall to E & E | Advises E & E that the contract should be returned by Thursday and requests the preparation of a new contract for Thompson to sign. |
| 16. | 30/8/06 at 5.18 pm Email letter E & E to Thompson | Requests that new buyer’s details be provided so the contract and deed of rescission may be prepared. |
| 17. | 5/9/06 at 10.01 am Email letter E & E to Thompson | 1. The Riggalls will enter into a new contract on the basis the new contract is in the name of Lorna Thompson and will have a settlement date of Friday 8 September 2006. 2. Lorna Thompson must waive her rights to the cooling off period under the new contract. 3. Please confirm your agreement with the proposal before 4.30 pm today. 4. E & E add that if the proposal is not acceptable, settlement will take place under the existing contract and they will forward the settlement figures shortly. |
| 18. | 5/9/06 at 11.41 am Email letter E & E to Thompson | Advises Thompson that the Riggalls are willing to settle the new contract on 11 September rather than 8 September if that is more convenient for Thompson. Ask whether this is acceptable. |
| 19. | 6/9/06 at 9.09 am Email letter Thompson to E & E | Advises E & E that she did not read their email until this morning. |
| 20. | 6/9/06 at 9.11 am Email letter E & E to Thompson | Do you want to settle on Monday 11 September with the new contract as discussed? |
| 21. | 7/9/06 at 8.59 am Email letter Thompson to E & E | 1. Confirms that Lorna Thompson has no objection to your request and will waive her rights to the cooling off period under any new contact. 2. Is still awaiting further advice to ensure the change of contract requirements are undertaken correctly. 3. Although the bank has approved Lorna Thompson’s application for finance, settlement cannot occur until 20 September at earliest. |
| 22. | 7/9/06 at 4.22 pm Email letter E & E to Thompson | 1. The extension granted was to three months after contract (11/9/06). The Riggalls will incur a liability of $10,000 if settlement does not take place on 11/9/06. 2. We will not agree to an extension to 20 September unless you can make a proposal to cover the Riggalls’ increased liability. 3. Meanwhile we will forward settlement information to you for settlement on 11/9/06. We require your proposal by 9.30 am tomorrow morning. |
| 23. | 8/9/06 at 2.23 pm Email letter E & E Thompson | 1. Settlement under the terms of the contract is due on Monday 11/9/06. 2. Place of settlement nominated and necessary documents included. |
| 24. | 8/9/06 at 3.58 pm Email letter Thompson to E & E | 1. Have just read your emails. 2. I am prepared to make a payment of $10,000 on Monday (to be adjusted at settlement). |
| 25. | 11/9/06 at 9.57 am Email letter E & E to Thompson | 1. We will agree to settlement on 20 September 2006 on the following basis: i) A further deposit of $10,000 is received by 2.30 pm today. The deposit will be non-refundable. ii) Lorna Thompson signs the new contract and provides the waiver certificate for the cooling off period by close of business today. iii) Settlement adjustments will be adjusted as at 11 September 2006. 2. If we do not hear back from you by 12.30 pm today confirming your acceptance of the above conditions, we will proceed to settlement under the existing contract as previously advised. |
| 26. | 11/9/06 at 11.17 am Email letter Thompson to E & E | 1. I am able to provide a further $10,000 deposit today on the basis this amount is adjusted at settlement. 2. I have been advised that the extension of time that your client has agreed in principle to must be pursuant to the original contract. 3. As soon as settlement can be confirmed Lorna Thompson will then enter into a new contract and sign the waiver certificate. At that time the original contract must also be cancelled. 4. I am currently checking the settlement estimates provided. |
| 27. | 11/9/06 at 12.09 pm Email letter E & E to Thompson | 1. The additional deposit ($10,000) is to be paid by 2.30 pm today. This additional deposit is non‑refundable. 2. Lorna Thompson must sign the new contract and waiver certificate today. 3. A deed of rescission of the current contract will be handed over at settlement on 20 September. 4. Settlement must occur on 20 September. 5. Settlement adjustments are to be as at 11 September. We await your response which must be received before 12.30 pm. |
| 28. | 11/9/06 at 12.37 pm Email letter Thompson to E & E | 1. I have the $10,000 cheque in my possession and can deliver it to your office before 2.30 pm. 2. I am unable to make contact with Lorna Thompson. 3. I have done everything reasonable to assist the Riggalls enter into a new contract and at this time can do no more. |
| 29. | 11/9/06 at 1.21 pm Email letter E & E to Thompson | 1. The bank cheque for $10,000 is to be delivered to our office by 2.30 pm today. 2. The new contract in Lorna’s name and waiver certificate and associated documents will be ready for collection when you come in. 3. Lorna must sign the contract and return it together with the waiver certificate and associated documents to us before 5 pm tomorrow. 4. If we do not receive the above documents by this time default interest of 11.5% pa will be then charged on the balance purchase price until settlement. 5. Settlement adjustments will be calculated as at 11 September 2006. 6. Completion must occur on 20 September 2006. 7. The deed of rescission of the current contract will be handed over at completion in exchange for the balance purchase price. We await your urgent response. We understand that Lorna is a minor. Can you confirm? |
| 30. | 11/9/06 at 3.14 pm Email letter E & E to Thompson | 1. Under the terms of the contract settlement is due today. 2. We nominate time and place for settlement. |
| 31. | 12/9/06 at 3.23 pm Email letter and original letter E & E to Thompson | 1. Confirms the Riggalls were ready, willing and able to settle on 11/9/06 in accordance with contract. 2. Asserts Thompson failed to settle and is in breach of contract. 3. Riggalls elect to affirm the contract and reserve their right to sue under the contract for damages. 4. 20/9/06 is fixed as the settlement date for the contract as affirmed with time to remain of the essence. 5. Claim to elect to charge interest at the default interest rate on the balance of the outstanding purchase price for the period between 11 September and settlement. |
| 32. | 18/9/06 at 11.27 am Email letter (letter attached) E & E to Thompson | Attached letter specifies the time and place that settlement is to occur on 20 September 2006. Settlement calculations enclosed. |
| 33. | 19/906 at 3.57 pm Email letter E & E to Thompson | Confirms settlement booked for 20 September 2006 and contains advice as to cheque requirements. |
| 34. | 20/9/06 at 11.03 am Email letter E & E to Thompson | 1. Confirm settlement scheduled for today 20/9/06. 2. We understand you wish to extend the settlement date to 21/9/06. 3. We will agree to extend the settlement date to 21/9/06 provided default interest is paid for the period 11/9/06 to 21/9/06 and settlement adjustments remain as at 20/9/06. 4. Please confirm your acceptance of the above terms by return email before 1 pm today. 5. The necessary documentation in the name of Lorna Thompson can be collected from our office. |
| 35. | 20/9/06 at 12.20 pm Email letter Thompson to E & E | 1. Please find attached email sent to Brian on 12 September. 2. As I still hold the bank cheque for $10,000 the contract amount should be $765,000 (excluding certain adjustments). 3. Also Brian has advised that special conditions 1, 2, and 3 are not required. 4. Request that the deed of rescission of the original contract be emailed to me today. |
| 36. | 20/9/06 at 2.33 pm Email letter E & E to Thompson | 1. You are bound by the contract dated 9 June 2006. At settlement tomorrow you are required to pay the balance purchase price (including default interest) of $776,278.56. 2. The balance purchase price is $776,278.56 regardless of whether you settle under the existing contract or sign and complete under the new contract. 3. Please confirm you will attend settlement on 21 September 2006 with the above bank cheques. Place of settlement identified. |
| 37. | 21/9/06 Email letter Le Mass solicitors to E & E | Have just been retained to act on behalf of Thompson. |
| 38. | 22/9/06 at 3.42 pm Email letter E & E to Le Mass solicitors | Refers to telephone conversation yesterday. Asserts that “our client tendered at settlement 2 pm yesterday and your client did not settle before 5 pm. We reserve our client’s right in relation to your client’s failure to settle.” |
| 39. | 22/9/06 Facsimile letter E & E to La Mass solicitors | 1. Says that Riggalls will be ready, willing and able to settle on 17 October 2006 at a place nominated. 2. Settlement figures enclosed for “your confirmation”. |
| 40. | 22/9/06 Facsimile letter E & E to Le Mass solicitors | 1. There is a valid binding contract between the parties (contract dated 9/6/06). 2. At no stage has “our client agreed to rescind the contract, whether expressly or by conduct.” 3. By previous notices the settlement date has been extended until 21 September 2006. Your client failed to complete the contract before 5 pm on that date and we reserve the Riggalls’ rights in relation to your client’s breach of the contract. |
| 41. | 25/9/06 Email letter Le Mass solicitors to E & E | It appears to us: 1. time no longer of the essence. 2. likely the original contract has been rescinded. 3. or the original contract has been rescinded and a replacement contract is current … admission that Thompson not in a position to settle and that her mother (Lorna Thompson) has lost her title deed and may not be able to settle for six to eight weeks. Offer to enter into a new contract on terms set out in the letter. |
| 42. | 26/9/06 Facsimile letter E & E to Le Mass solicitors | 1. Denies contract dated 9 June rescinded for that time is no longer at the essence. 2. Re the $10,000. The terms not accepted by the Riggalls. 3. The offer of a new contract not acceptable. 4. Request that a firm date for settlement be communicated before 5 pm today. |
| 43. | 3/10/6 Facsimile letter E & E to Le Mass solicitors | 1. Alleged breach by Thompson on 21 September 2006 constituted by a failure to settle on that date. 2. Confirmed Riggalls were ready, wiling and able to settle on 21 September 2006 and that Thompson is in breach of contract. 3. Elect to affirm the contract but reserve all rights to sue for damages under the contract. 4. Nominate 17 October 2006 as the settlement date of the contract with time to remain of the essence. 5. Elect to charge interest at the default interest rate on the balance of purchase price outstanding for the period between 11 September 2006 and settlement. |
| 44. | Facsimile letter Le Mass solicitors to E & E | We have forwarded your letter of 3/10/06 to Thompson. |
| 45. | 22/9/06 (wrongly dated 11/10/06) Facsimile letter E & E to Le Mass solicitors | 1. We confirm the Riggalls will be ready, wiling and able to settle on 17 October at the place nominated. 2. If Thompson fails to pay the balance of purchase moneys and default interest on 17 October 2006 she will be in default. Settlement figures enclosed for confirmation. |
| 46. | 16/10/06 Facsimile letter E & E to Le Mass solicitors | Confirm settlement for Tuesday 17 October 2006 and enclose final details concerning settlement. |
| 47. | 17/10/06 Facsimile letter E & E to Le Mass solicitors | Records Thompson’s failure to settle on 17 October 2006 and reserve Riggalls’ rights in relation to that breach of the contract. |
| 48. | 19/10/06 Facsimile letter Le Mass solicitors to E & E | Admits that Thompson (and Lorna Thompson) unable to complete contract and communicates a further offer to the Riggalls. |
| 49. | 24/10/06 Facsimile letter E & E to Le Mass solicitors | 1. Reiterate breach constituted by failure to settle under the contract on 17 October 2006. 2. Formally terminate the contract pursuant to clause 9.1. 3. Says that in accordance with clause 9.3(2) the Riggalls keep the deposit of $44,000 paid. 4. Reserve the right to take further action under the contract. |
| 50. | 25/10/06 Facsimile letter Le Mass solicitors to E & E | Letter sets out attempts being made by Thompson to raise finance to complete purchase. |
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