Court of Appeal
New South Wales
Case Title: Stephen Wayne Velik v Noreen Steingold Medium Neutral Citation: [2013] NSWCA 303 Hearing Date(s): 29 July 2013 Decision Date: 13 September 2013 Before: McColl JA [1];
Gleeson JA [2];
Sackville AJA [3].Decision: 1. Appeal allowed.
2. Set aside the orders made by the primary Judge on 4 September 2012 and 29 October 2012.
3. Direct the appellants (the Purchasers) to file within seven days short minutes of order consistent with these reasons for judgment.
4. Direct the appellants, if the short minutes of order are not agreed, to file within the time specified in Order 3, brief written submissions in support.
5. Direct the respondent (the Vendor), if she disputes the appellants' short minutes of order, to file within a further seven days her proposed short minutes of order, together with brief written submissions in support.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: CONTRACT - contract for the sale of land - validity of notice to complete - whether contract required fourteen clear days notice - whether any shorter period permissible
CONTRACT - whether purchasers repudiated the contract by failing to complete on an agreed date (where a valid notice to complete had not been served) - purchasers insisting on an erroneous interpretation of the contract as the basis of their refusal to complete on the agreed date - purchasers acting in good faith - failure of vendor to point out the precise error in the purchasers' interpretationLegislation Cited: Conveyancing Act 1919 s 55(2A) Cases Cited: Ajit v Sammy [1967] 1 AC 255
Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation [1965] HCA 20; 113 CLR 662
Carr v Keys-Arenas (1982) 2 BPR 9498
Doyle v Howey (1990) 6 BPR 13,401
DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; 138 CLR 423
Forster v Jododex Australia Pty Limited [1972] HCA 61; 127 CLR 421
Killarney Investments Pty Ltd v Macedonian Community of Western Australia Inc [2007] WASCA 180
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; 166 CLR 623
M & L Hazelton Pty Ltd v Woodfield (1982) 2 BPR 97,144
Perpetual Trustee Company Ltd v Meriton Property Management Pty Ltd [2006] NSWCA 75; 15 BPR 28,323
R & A Cab Co Pty Ltd v Kotzman [2008] VSCA 68
Ross T Smyth & Co Ltd v TD Bailey, Son & Co [1940] 3 All ER 60
Satellite Estate Pty Ltd v Jaquet (1968) 71 SR…
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- AGLC
- Velik v Steingold [2013] NSWCA 303
- Case
- [2013] NSWCA 303
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the contract required fourteen clear days' notice to complete, and if not, whether any shorter period was permissible. Additionally, the court had to determine whether the purchasers had repudiated the contract by failing to complete on the agreed date, given that a valid notice to complete had not been served, and whether their insistence on an erroneous interpretation of the contract, despite acting in good faith, constituted repudiation, particularly in circumstances where the vendor had failed to point out the precise error in their interpretation.
The Court of Appeal found that the notice to complete served by the vendor was invalid because it did not provide the required fourteen clear days' notice. Consequently, the purchasers' failure to complete on the original settlement date did not amount to a repudiation of the contract. The court reasoned that while the purchasers had insisted on an erroneous interpretation of the contract, their actions were taken in good faith, and the vendor had not taken steps to clarify the correct interpretation. Therefore, the purchasers had not evinced an intention to be no longer bound by the contract.
The appeal was allowed, and the orders made by the primary judge were set aside. The purchasers were directed to file short minutes of order consistent with the reasons for judgment, with further directions for submissions if agreement on the minutes could not be reached.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders made by the primary Judge on 4 September 2012 and 29 October 2012.
3. Direct the appellants (the Purchasers) to file within seven days short minutes of order consistent with these reasons for judgment.
4. Direct the appellants, if the short minutes of order are not agreed, to file within the time specified in Order 3, brief written submissions in support.
5. Direct the respondent (the Vendor), if she disputes the appellants' short minutes of order, to file within a further seven days her proposed short minutes of order, together with brief written submissions in support.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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