Wilde v Anstee

[1999] NSWSC 612

Reported Decision: (2000) NSW ConvR 55-951

New South Wales

Supreme Court

CITATION:	Wilde v Anstee [1999] NSWSC 612
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	5095/97 and 4088/97
HEARING DATE(S):	19 October 1998
JUDGMENT DATE:	23 June 1999
PARTIES :	Gregory Alfred Wilde & Anor (P) v Matthew Thomas Anstee & Anor (D)
JUDGMENT OF:	Austin J

COUNSEL :	J Smith (P) S Burchett (D)
SOLICITORS:	Helliars City (P) Brock Partners (D)
CATCHWORDS:	Real property - conveyancing - contract for sale of land - notice to complete - purchaser's failure to complete on agreed date - whether purchaser entitled to reasonable time for completion after registration of plan - whether notice to complete valid where property is charged with land tax in unassessed amount - whether notice to complete which specifies alternatives of rescission and specific performance is effective - whether notice of rescission must specify breach
CASES CITED:	Balog v Crestani (1975) 132 CLR 289 Castle Hill Tyres Pty Ltd v Luxspice Pty Ltd (1996) NSW ConvR para 55-771 Ciavarella v Balmer (1983) 57 ALJR 632 Dabbs v Seaman (1925) 36 CLR 538 Dainford Ltd v Yulora Pty Ltd (1984) NSW ConvR para 55-184 Gostown Pty Ltd v Prior (1970) 92 WN (NSW) 882 Halkidis v Bugeia [1974] 1 NSWLR 423 Jillinda Pty Ltd v McCourt (1983) NSW ConvR para 55-145 Jones v Dunkel (1959) 101 CLR 298 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Louinder v Leis (1982) 149 CLR 509 Lynch v Olympic Bowling Centres Pty Ltd [1969] 1 NSWR 351 Maxsujur Pty Ltd v Asimus [1980] 2 NSWLR 96 McNally v Waitzer [1981] 1 NSWLR 294 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 O’Brien v Dawson (1941) 41 SR(NSW) 295 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Re Barr’s Contract [1956] Ch 551 Taylor v Raglan Developments Pty Ltd [1981] 2 NSWLR 117
DECISION:	Judgment for plaintiffs

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

WEDNESDAY 23 JUNE 1999

5095/97 & 4088/97 - GREGORY ALFRED WILDE & ANOR V MATTHEW THOMAS ANSTEE & ANOR

JUDGMENT

1   HIS HONOUR: This case involves a dispute between the vendor and purchaser of a residential waterfront property situated at 338 Victoria Place, Drummoyne (‘the Property’). As I shall explain, part of the dispute relates to whether the Property included a strip of reclaimed land at the mean high water mark of the Parramatta River. My reference to the Property is not intended to pre-judge that issue. 2   The plaintiffs, Mr and Mrs Wilde, were the registered proprietors of the Property at all material times until 2 May 1997. The second defendant, Burridge Realty Pty Ltd, was the plaintiffs’ agent for the sale of the Property. On 19 September 1996 an auction of the Property took place at which the first defendant, Mr Anstee, was the successful bidder. Later that day the plaintiffs and the first defendant entered into a contract for the sale of the Property for $890,000. The contract was the 1992 edition approved by the Law Society of New South Wales and the Real Estate Institute of New South Wales, with annexures and special conditions. The first defendant paid a deposit of $44,500 to the second defendant. The deposit is still held by the second defendant in an interest-bearing account. 3   The contract provided for a completion date 13 weeks after the date of the contract. The parties agree that the effect of this provision was to designate 19 December 1996 as the completion date. On 20 December 1996 the plaintiffs’ solicitor served a notice to complete on the first defendant, purporting to require completion by 7 January 1997 (the first notice to complete). By a letter dated 6 January 1997 the first defendant’s solicitor challenged the validity of that notice on grounds which will appear later in this judgment. Completion did not take place on 7 January, and on 13 January 1997 the plaintiffs’ solicitor served a second notice to complete on the first defendant, purporting to require completion by 28 January 1997 (the second notice to complete), ‘without acknowledging the correctness of the matters raised’ in the letter of 6 January 1997. In fact two notices to complete were issued on 13 January 1997. The earlier of the two notices, which provided for completion on or before 27 January 1997, was withdrawn and replaced with an otherwise identical notice which required completion on 28 January 1997. It is the latter which I call the second notice to complete. Apart from their dates and the last date for completion which they stipulated, the first and second notices to complete were in identical form. 4   Completion did not take place by 28 January 1997, and the plaintiffs’ solicitor served a notice of rescission on the first defendant, purporting to terminate the contract. As I shall explain, there is a dispute about the date of service of the notice of rescission, which bears the date 28 January 1997. The plaintiffs entered into a contract for the sale of the Property to someone else on 21 March 1997, and that sale was completed on 2 May 1997.

The Proceedings

5   The plaintiffs commenced proceedings against the first and second defendants in the District Court on 14 May 1997 (No.2518/97). In their statement of claim the plaintiffs sought to recover the deposit from the second defendant and damages from the first defendant for breach of contract. The first defendant filed notice of grounds of defence on 17 September 1997. He then filed a summons in this Court (matter No.4088/97) on 19 September 1997 seeking, inter alia, an order that the second defendant pay the deposit to him. He also sought orders that the plaintiffs’ District Court proceedings be transferred to the Supreme Court and that they be heard and determined together with the proceedings initiated by him. 6   On 24 June 1997 the Registrar made consent orders transferring the District Court proceedings to this Court (becoming matter No.5095/97) and providing that they be heard together with the proceedings initiated by the first defendant. On 4 September 1998 the Master ordered that proceedings No.4088/97 and 5095/97 be consolidated, and that the summons in No.4088/97 stand as a cross-claim within proceedings No.5095/97. 7   Thus in the consolidated proceedings the plaintiffs seek to forfeit the deposit and recover damages from the first defendant for breach of contract, and the first defendant seeks the return of the deposit. The second defendant will abide by the order of the Court. The hearing before me was confined to the questions of entitlement to the deposit and liability to pay damages. Since I have concluded, for the reasons set out in this judgment, that the plaintiffs are entitled to forfeit the deposit and to recover damages for breach of contract from the first defendant, it will be necessary for me to order an inquiry as to damages.

The legal issues

8   Essentially the case turns on various challenges by the first defendant to the legal efficacy of the two notices to complete and the notice of rescission. First, there is a challenge arising out of special condition 6 of the contract, which relates to a Waterways lease and the waterfront boundary of the Property. Second, there is a challenge based on the fact that land tax for 1997 was neither assessed nor paid until well after the expiry of the second notice to complete. Third, there is a challenge to the content of the notices to complete, and finally, there is a challenge to the content and timing of the notice of rescission. I shall deal in turn with those legal issues, and the further findings of fact which are necessary in order to dispose of them. 9   According to Professor Butt (P Butt, The Standard Contract for Sale of Land in New South Wales, 2nd Ed, 1998, p 638) the requirements for a valid notice to complete are as follows:

‘(1) The recipient of the notice must be in default such as to justify the giving of the notice;
(2) the giver of the notice must be free of relevant default when giving the notice;
(3) the giver of the notice must be able ready and willing to proceed to completion;
(4) the time fixed by the notice must be reasonable in all the circumstances; and
(5) the notice must be in order as to form and content.’

10   In this case the plaintiffs say that Professor Butt’s condition No.(1) was met as regards both notices to complete. They say that the first defendant was in default at the time of the first notice, such as to justify the giving of the notice, because the first defendant did not complete as required by the contract on 19 December 1996. The first defendant says there was no such default because, as a matter of construction of the contract, the obligation to complete did not arise (if at all) until 10 January 1997, 21 days after he was notified of registration of a deposited plan which gave the plaintiffs registered title to a small strip of land above the mean high water mark in conformity with the plaintiffs’ obligations under special condition 6; and even if this were not so, he was entitled to reasonable notice of registration of the plan before a notice to complete could effectively be issued. Since these matters were fully argued I shall deal with them. However, the contentions by the first defendant challenge the efficacy of only the first notice to complete. In my opinion it is clear that by failing to complete on 7 January 1997, the first defendant came to be in default if that was not already the case, and this default justified the giving of the second notice. 11   The first defendant also says that Professor Butt’s conditions Nos.(2) and (3) were not satisfied by the plaintiffs at any stage, because the Property was charged with the payment of land tax on 1 January 1997 and that tax was not assessed and paid until well after the expiry of the second notice to complete. 12   The first defendant also attacks both notices to complete for failure to comply with Professor Butt’s condition No.(5), on the ground that they are deficient as to content, because the notices seek to preserve the alternative remedies of termination and specific performance. 13   The first defendant’s attack on the notice of rescission is essentially that it was given one day too early and fails to specify the alleged breach with sufficient particularity.

Special condition 6

14   The first page of the contract specifies the address of the property and in a box labelled ‘Improvements’ the word ‘house’ has been typed. Then there is a box labelled ‘Plan’, in which the following appears:

Registered Plan: Lot 1 Section Plan 964578 (copy attached)

Unregistered plan: Lot in an unregistered plan (copy attached) (clause A6)
which is part of Lot Section Plan (copy attached)
(the plan registration time is 6 months after the date of this contract)

All of the above text is printed as part of the standard form of contract, except the lot and plan numbers and the number ‘6’ on the last line, which have been inserted in typescript. It is noteworthy that the printed form concerning an unregistered plan is not filled in, except for the number ‘6’ on the bottom line. 15   Annexed to the contract was a copy of Plan No.964578 and also a survey certificate dated 24 May 1985. The certificate is useful because it expresses the measurements of lot 1 in Plan No.964578 in metres, whereas the plan itself is in feet and inches. The certificate shows that the eastern boundary was 38.3 metres in length and the western boundary was 40.32 metres in length. 16   Special condition 6 is in the following terms:

‘Annexed hereto is a copy of the existing lease between the Maritime Services Board and the vendors and letter from Waterways dated 10 September 1996. The vendors agree to take all steps and do all things necessary for the purchaser to obtain a new lease of the area referred to in the Waterways letter. The vendors agree that prior to completion they shall ensure that the boundary of their property hereby sold shall be adjacent to and contiguous with the property referred to in the lease.’

17   Special condition 6 contains two obligations. The first is to take all steps and do all things necessary for the purchaser to obtain a new lease of the area referred to in the Waterways letter of 10 September 1996. The Waterways letter states that subject to three conditions the Waterways Authority would be prepared to grant a fresh lease to any purchaser in respect of areas designated in an attached plan. The three conditions are satisfactory termination of the existing lease, proof of ownership of the adjoining freehold (that is confirmation of title details following completion of the sale), and payment of the annual rental which is specified. The evidence shows that the plaintiffs have done everything within their power to comply with their obligation to procure a new Waterways lease, having regard to the conditions set out in the Waterways letter. Of the three conditions specified by the Waterways Authority, the second could not be satisfied until completion and at that time would be satisfied by the first defendant as purchaser rather than by the vendors; and the third condition relating to payment of rent was a matter for the purchaser alone. As to the first condition, satisfactory termination of the existing lease, the plaintiffs did everything they could do to comply. By their letter of 9 December 1996 the plaintiffs’ solicitor submitted to the first defendant’s solicitor a copy of a signed deed of surrender of the existing lease. Though the letter does not expressly say so, it bears the clear implication that the original deed of surrender would be available upon completion. 18   The second obligation in special condition 6 is for the plaintiffs to ensure that prior to completion the boundary of their property is adjacent to and contiguous with the property referred to in the lease. In my opinion the words ‘adjacent to and contiguous with’ in special condition 6 convey the meaning that at completion the northern boundary of the property sold to the purchaser was required to touch the southern boundary of the area to be leased by the Waterways Authority and referred to in the annexure to its letter of 10 September 1996. 19   It appears that there was an area of reclaimed land between the northern boundary of lot 1 in Plan No.964578 and the mean high water mark of the Parramatta River. A plan was registered on about 18 December 1996 (Deposited Plan No.864896), effectively in substitution for the earlier plan, having the effect of re-defining the northern boundary of the Property. In the new plan the length of the eastern boundary is 45.285 metres and the western boundary is 47.77 metres. Whereas the survey certificate shows that the northern boundary of the Property was to the south of the boatshed, the new plan shows the northern boundary passing through the boatshed, which has therefore become fully accessible from the (enhanced) Property. 20   The plan annexed to the Waterways letter shows the location of a boatshed, jetty, pontoon and ramps, and identifies an area of reclaimed land adjacent to the boatshed. The first defendant submits that there was no direct evidence that the new boundary of the Property was adjacent to and contiguous with the property referred to in the lease. In my opinion, however, it is reasonably clear from a comparison of the plan annexed to the Waterways letter of 10 September 1996 with Deposited Plan No.864896 that the new boundary was adjacent to and contiguous with the property the subject of the proposed new Waterways lease, and I think it appropriate to infer from all the evidence that the property which Waterways proposed to lease was identical with the property which it had leased to the plaintiffs. Further, the evidence shows that the first defendant’s solicitor was provided with a copy of the proposed plan by letter of 9 December 1996, and there is no evidence that the first defendant at any stage complained that registration of the plan would not discharge the plaintiffs’ obligation under the last sentence of clause 6. I conclude that the plaintiffs discharged that obligation when the plan was registered on about 18 December 1996. 21   My conclusions therefore are that the plaintiffs complied with the first limb of their obligations under special condition 6 when they provided a copy of the deed of surrender of the existing Waterways lease to the first defendant’s solicitor on 9 December 1996, impliedly agreeing to hand over the original of that document on completion. They complied with the second limb of their obligations under special condition 6 on about 18 December 1996 when they procured the registration of the new Deposited Plan.

Clause A6

22   The first defendant submits that, even if the Court concludes that the plaintiffs complied with special condition 6 by 18 December 1996, they were in no position to demand completion on 19 December 1996 nor to issue the first notice to complete on 20 December 1996. The first defendant’s submission is based on two grounds. 23   The first ground flows from clause 20.12 of the contract, which says:

‘Normally, clauses A1-A6 referred to in this contract apply in the form last published by the Law Society of NSW and the Real Estate Institute of NSW, even if not attached.’

24   The application of clause A6 to the standard form of contract is confirmed by the description of the property on the first page, which (as noted above) cross-refers to clause A6. 25   Clause A6 is in the following terms:

‘A6 Unregistered plan

If any of the property is described as a lot in an unregistered plan -

A6.1 the vendor must do everything reasonably necessary to have the plan registered within the plan registration time, with or without any minor alteration to the plan or any document to be lodged with the plan validly required or made by a statutory authority or the Registrar General;

A6.2 normally, either party can rescind if the plan is not so registered;

A6.3 the purchaser must serve the form of transfer within 14 days after either party serves notice of the registration of the plan and every relevant lot and plan number;

A6.4 the completion date becomes the later of that date and the date which is 21 days after that service;

A6.5 clauses A6.1 and A6.2 apply to any prior plan which is to be registered before the plan is registered; and

A6.6 the purchaser cannot make any claim, objection or requisition or rescind or terminate in respect of a boundary adjustment plan making only one or more minor adjustments.’

26   The first defendant submits that clause A6 applied to the present case because the contract contemplated the registration of an unregistered plan which would incorporate the area of reclaimed land into the plaintiffs’ title. The first defendant says that the additional land area is part of the property which was the subject of the contract. He relies on Dabbs v Seaman (1925) 36 CLR 538. In that case the title documents to land referred to a ‘20 foot lane’ adjacent to the land, and the majority in the High Court of Australia held that the purchaser of the land was entitled to use that 20 foot strip as a lane, notwithstanding the absence of any formal easement over it. The plaintiffs submit that the Property did not include the additional area. They contend that since particulars of the ‘unregistered plan’ were not filled in, the ‘property’ identified on page 1 of the contract and referred to in the printed conditions was only lot 1 in Plan No.964578. The insertion of the number ‘6’ in the bottom line of the description of property, was, they say, simply a mistake. 27 In my opinion the additional land area was not part of the Property which was the subject of the contract. Instead, the plaintiffs as vendors contracted to sell lot 1 in the old Plan No.964578 and made a separate promise in special condition 6 to ensure that the boundary of their property would be adjacent to and contiguous with the property referred to in the Waterways lease. This is not a case where any of the property sold by the contract is a lot in an unregistered plan. Rather it is a case where the vendors promise to alter the boundary to their existing property by the registration of a new plan. Even if the situation could be described as a sale of a lot in an unregistered plan, it could not be said that any of the property sold is described as a lot in unregistered plan, since the particulars on page 1 of the contract adjacent to the words ‘unregistered plan’ have not been completed. If find, therefore, that clause A6 does not apply to designate a completion date later than 19 December 1996.

Reasonable time for completion after registration of the plan

28   The first defendant also submits that, quite apart from clause A6, the plaintiffs were not entitled to demand completion on 19 December 1996 and serve a notice to complete on the following day, when they did not notify the first defendant that the new plan was registered until 18 December 1996 (or, arguably, 19 December 1996, having regard to clause 20.6 of the contract). One way of putting the point is to say that there was an implied term in the contract that the plaintiff would not require completion until a reasonable time had elapsed after they notified the defendant of registration of the plan. Another way of putting the point is that for the purposes of specific performance and other discretionary remedies, equity will not regard a notice to complete as effective unless a reasonable time has elapsed after the vendors have made good their title. 29   In addition to special condition 6, special condition 2 and printed clause 15 are relevant:

‘2. If this Agreement is not completed by the completion date either party shall be entitled to issue a Notice to Complete fixing a time for completion which time shall be the essence of this Agreement and such notice shall be deemed to be sufficient as to time if a period of not less than fourteen (14) days from the date of the notice is allowed for completion.’

‘15. Completion date
15.1 The parties must complete by the completion date (being a fixed but inessential date).
15.2 If the parties do not complete by the completion date, a party can serve a notice to complete if that party is otherwise is entitled to do so.’

Louinder v Leis (1982) 149 CLR 509 is authority for the proposition that a mere failure to comply with a non-essential stipulation as to time of completion justifies the giving of a notice having the effect of making time the essence of performance of that stipulation, even though the failure to comply does not involve an unreasonable delay. In other words, all other things being equal it would not be necessary for the plaintiffs to wait for any further period after 19 December 1996 before giving a notice to complete.

30   However, as Mason J pointed out in that judgment (at 523), before a notice to complete can be validly given, in a case where the contract stipulates a completion date, not only must the intended recipient of the notice be in breach by failing to complete on the stipulated date, or guilty of unreasonable delay, but also the party giving the notice must be free of default by way of breach or antecedent relevant delay (see also Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286, 299). These requirements were considered by McLelland J in Jillinda Pty Ltd v McCourt (1983) NSW ConvR para 55-145. In that case a contract for the sale of a strata title home unit provided for completion to take place on 19 February 1983. A special condition of the contract required the vendor to furnish a certificate from the body corporate pursuant to s 70(1)(c) of the Strata Titles Act not less than seven days before completion. The certificate was not furnished until 18 February 1983. Settlement did not take place on 19 February, and on 22 February the vendor gave a notice to complete to the purchaser requiring completion within 14 days. McLelland J held that on the true construction of the contract of sale the purchasers’ obligation to complete on 19 February was conditional on the vendor having furnished the certificate not less than 7 days before that date. Since the certificate was not furnished until much later, it could not be said that the purchaser was in default by virtue of not completing on 19 February. As to the vendor’s position, his Honour held that the vendor was in default until 18 February because it had not furnished the certificate until that date, and its delay in performance of the obligation to furnish the certificate remained relevant to the relative situation of the parties in respect of completion at the time when the notice was given on 22 February. He concluded that the notice to complete was invalid both because there was no relevant default by the purchaser and because the vendor’s previous delay remained relevant to prevent it from issuing a notice at that stage. 31 While the facts of the present case are close to the facts in Jillinda, in my opinion that case is distinguishable. In the present case the contract merely required the vendor to ensure that the boundary of the property was adjacent to and contiguous with the boundary of the waterfront lease area ‘prior to completion’. The contract did not require this to occur at any specified time prior to completion. Nor, in my opinion, could it be said that special condition 6 contained an implied term that contiguous title be obtained at a reasonable time before the date fixed for completion. The effect of the contract, plainly enough, was that completion was to take place on 19 December 1996 and that prior to that time, but at no particular earlier point of time, the plan must be registered. Registration of the plan on 18 December 1996 constituted compliance by the plaintiffs with their obligation under special condition 6, and the failure by the first defendant to complete on 19 December 1996 constituted a relevant default for the purposes of the principle in Louinder v Leis. Consequently the plaintiffs were entitled to give the notice which they gave on 20 December 1996. 32   Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 suggests that a special condition such as special condition 6 obliges the vendor to comply with its terms within a reasonable time. Here it cannot be contended that the plaintiffs were guilty of any unreasonable delay in registering the plan by 18 December 1996. 33 The position would have been different if, as in Castle Hill Tyres Pty Ltd v Luxspice Pty Ltd (1996) NSW ConvR para 55-771, special condition 6 had not been complied with until after the date fixed by the contract for completion. In the Castle Hill Tyres case, where a non-essential completion date was fixed in a contract clause 15 of which was identical with the present contract, and the special condition required that a lease and surrender of lease be registered prior to completion, registration did not take place until about four weeks after the completion date. But when registration occurred, the vendor immediately issued a notice to complete. Young J held that the notice to complete was invalid because at the time when it was issued, the purchaser was not in default under the contract. Since the vendor had not complied with the special condition at the contractual completion date, the purchaser could not have been in breach by failing to complete at that time, and was entitled to reasonable notice of registration before completion could be insisted upon, ‘to enable the purchaser to arrange for the financial institution which was assisting it to get paperwork together to allow for completion, a time that usually requires some seven to 14 days’ (at 55,919). 34   The first defendant argued, by analogy with the Castle Hill Tyres case, that he was entitled to reasonable notice to enable him to get the paperwork together for completion after registration of the deposited plan. I disagree. In the present case the relevant entitlements of the parties are governed by the express terms of the contract. Under those express terms, the first defendant agreed to complete on 19 December if at any time prior to that day, the vendor complied (inter alia) with special condition 6. By entering into a contract in those terms, the first defendant agreed, in effect, that he would not need any additional time to ‘get the paperwork together’ if special condition 6 was complied with at the last minute. Given the speed of searching the computerised land titles register, that is not an unreasonable or surprising agreement to make. 35   I conclude, therefore, that the first notice to complete is not open to challenge on the ground that it was issued too soon after the registration of the deposited plan.

Land tax

36 Section 7 of the Land Tax Management Act 1956 (NSW) imposes land tax on the land value of all land in New South Wales which is owned by the relevant taxpayer, other than land which is exempted. According to s 8, land tax is charged on land as owned at midnight on 31 December immediately preceding the year for which the tax is levied (generally, see Lynch v Olympic Bowling Centres Pty Ltd [1969] 1 NSWR 351). 37 Section 47(1) of the Act states that land tax is until payment a first charge upon the land taxed in priority over all other encumbrances whatever. Subsections 47(1A) and following set up a procedure whereby the Chief Commissioner issues a certificate upon application showing whether there is any land tax charged on specified land. According to s 47(1C), a certificate issued by the Chief Commissioner under the section is conclusive evidence of the matter certified, subject to certain exceptions. Additionally, s 47(2) authorises the Chief Commissioner to release land which is subject to land tax on payment of an amount which the Chief Commissioner estimates to be not less than the proportion of tax referrable to the land. The effect of these provisions is to authorise a procedure for release of specified land from the charge before the owner’s land tax is paid or even assessed, upon the payment of an amount estimated by the Chief Commissioner, and for the issue of a s 47 certificate to confirm that the release has occurred. 38 Under the contract of sale in the present case the vendor was liable for any land tax up to and including the date of settlement (clause 14.1), and no provision was made in the contract for adjustment of land tax liability between the vendor and purchaser. The vendor was obliged to clear any land tax certificate served by the purchaser before completion if the certificate disclosed a land tax charge on the property (clause 16.2.2). 39 The plaintiffs and the first defendant exchanged requisitions on title and answers in the normal way. The requisitions by the first defendant’s solicitors, Brock Partners, required that land tax in respect of the property should be paid prior to settlement, and asked whether the property was liable to land tax. The plaintiffs’ solicitors, Helliars City, replied saying that the property was not subject to land tax. It appears that that was true at the date of the reply, namely 9 December 1996, but when settlement had not occurred by midnight on 31 December 1996 the property became subject to a land tax charge in the plaintiffs’ hands for the first time. On 6 January 1997 Brock Partners served on Helliars City a s 47 certificate showing that the land was subject to a charge for land tax for the 1997 year, in an amount which could not at that time be stated. Brock Partners said that the purchasers would require land tax to be cleared prior to completion. 40 Then Helliars City made arrangements with the Office of State Revenue for settlement to take place at that office and for the first defendant’s s 47 certificate to be endorsed with a land tax clearance upon payment of an agreed amount to the Office of State Revenue by bank cheque. Those arrangements were first notified by Helliars City to Brock Partners on 7 January 1997, the date nominated in the first notice to complete as the completion date. They were reiterated in later correspondence when subsequent attempts at settlement were made. Some variations to the estimate of the amount to be paid for release of the land from the land tax charge were, in my view, immaterial on the facts. 41 I infer from this evidence that Helliars City on behalf of the plaintiffs did everything that could be done in the circumstances to address the land tax problem which had arisen on 31 December 1996. The evidence indicates that it was not practicable for them or their clients to obtain an assessment to land tax and pay the tax at any time during January 1997. In fact the land tax was assessed later in the year, being paid only in May 1997. The question is whether arrangements of the kind made by Helliars City in January 1997 imply that their clients, the plaintiffs, were ready, willing and able to proceed to completion of the transaction on the day specified in the first notice to complete, namely 7 January 1997 and if that is not the case, whether that condition was satisfied in respect of the second notice to complete, which required completion by 28 January 1997. 42 The third of Professor Butt’s requirements for a valid notice to complete, referred to above, is that the giver of the notice must be able, ready and willing to proceed to completion. The requirement was stated in that way by Danckwerts J in Re Barr’s Contract [1956] Ch 551, 556. In McNally v Waitzer [1981] 1 NSWLR 294, both Reynolds JA (at 296) and Hutley JA (at 303) acknowledged the link between this requirement and traditional equity pleading in a suit for specific performance. The allegation of readiness should in their opinion be given the same meaning with respect to notices to complete as it bears in the law of specific performance. After all, a notice to complete is in a sense the obverse of a decree of specific performance, since the notice makes time of the essence and takes away the recipient’s right to specific performance. Not surprisingly, therefore, the Court of Appeal of New South Wales unanimously held in McNally v Waitzer that it is unnecessary for the party giving the notice to do things prior to giving the notice which are suitable to be done upon rather than prior to completion. 43   In McNally v Waitzer a land tax assessment was issued two weeks before the vendor served a notice to complete on the purchaser, and the vendor paid the land tax two days before the date which the notice fixed for completion. The Court held that it was no objection to the validity of the notice that at the time when it was issued, the property was subject to a charge for the assessed but unpaid land tax, since it was open to the vendor to remove the charge by paying the tax at or prior to completion. Hutley JA said (at 303-4):

‘What the vendor has to do when he is selling land subject to land tax is, at most, to have removed the charge for land tax created by the Act. I am able to see that, in principle, land tax is in any different position from an ordinary mortgage; assuming the purchaser is not going to take over the responsibility of the mortgage, it has to be discharged at latest on completion and in many cases it will be discharged out of the purchase price. The same principle, in my opinion, applies to land tax. The vendor has to get rid of the charge for land tax, but only at the latest on completion and there is no objection to him giving a valid and effective notice to complete if at the time he gives it the property is still subject to land tax. …The correct rule, in my opinion, is simply that a vendor who is in default in respect of things which up until then should have been done cannot give a notice to complete, but he can give notice to complete prior to performing all those other things which he has to perform in order to complete the contract. The vendor does not have to satisfy the purchaser prior to completion that the land is not subject to a charge for land tax. He has, at the most on completion, to provide satisfactory evidence to the purchaser that either the land is not subject to land tax, or, if it is, that liability has been discharged in the course of completion itself.’

44   In reaching this conclusion, the Court of Appeal disagreed with a dictum of Street CJ in Eq in Halkidis v Bugeia [1974] 1 NSWLR 423, 427, in which his Honour said that a ‘vendor, in order to be able to rescind in reliance upon non-compliance with a notice specifying a period for completion, must be able to establish in court that he was himself not only ready and willing, but also able, to complete in accordance with the requirements under the contract throughout that period, that is to say at the time he gives the notice through until the time at which it expires’. [Emphasis supplied.] 45   Those observations were applied by McLelland J in Maxsujur Pty Ltd v Asimus [1980] 2 NSWLR 96. In that case the vendor served a notice to complete on 22 May 1979 calling for completion by 12 June 1979. The land was subject to a charge for land tax for the year 1979, but the assessment of tax did not issue to the vendor until 8 June, and the vendor paid the land tax on 13 June, the day after the date fixed by the notice for completion. McLelland J held that the notice was ineffective because the vendor was not able to remove the charge for land tax at the time when the notice was given. He said (at 99):

‘It seems to me to be inconsistent with the equitable principles which have given rise to the procedure of giving a notice making time of the essence that a party who is himself not then able to proceed to completion can effectively require the other party to complete within a stipulated time or lose the benefit of the contract, bearing in mind the concurrent and interdependent character of the respective obligations of the parties to complete.’

46   The Court of Appeal in McNally v Waitzer disapproved of Street CJ in Eq’s dictum in Halkidis and overruled the decision in Maxsujur. Then in Jillinda Pty Ltd v McCourt (cited above) McLelland J made some observations about McNally v Waitzer, by way of obiter dicta. He suggested that ‘in some appropriate future case it may be desirable for some of the dicta in the judgments in that case to be re-examined’ (at 57,062). He proceeded to give the following reasons for his suggestion:

‘Completion of a contract for sale involves the performance of concurrent obligations of vendor and purchaser. Therefore one party cannot be said to have defaulted in the performance of his obligation to complete at the contractual time for completion (whether stipulated or not) unless the other party was ready to proceed to performance of his concurrent obligations at that time (unless such readiness has been waived…). Accordingly where the only default alleged against the recipient of the notice to complete is his failure to complete at the contractual time for completion, the readiness of the giver of the notice at that time to complete may be a critical matter. Furthermore, although readiness to proceed to completion does not connote readiness instantly to hand over everything required on completion…, the analogy between discharging a mortgage and removing a charge for land tax referred to by Reynolds JA and by Hutley JA in McNally v Waitzer may break down in this context in a case where land tax had not yet been assessed, since unless and until the assessment issues, the charge is incapable of being removed, failing protection to the purchaser by action under s 47 of the Land Tax Management Act, whereas there is no equivalent bar to the discharge of the mortgage.’

47   In McNally v Waitzer the land tax assessment had been issued before the notice to complete was served, and therefore at the time of service of the notice, the vendors were in a position to remove the land tax charge simply by payment of the assessed amount. The analogy with the discharge of a mortgage was in those circumstances a close one. In Maxsujur the land was subject to a land tax charge when the notice to complete was served but the tax was not assessed until after the service of the notice, though before the date fixed by the notice for completion. By overruling Maxsujur, the Court of Appeal in McNally v Waitzer took the view that in such a case the vendor is ready willing and able to proceed to completion although the amount of land tax charged on the land was unknown at the time when the notice was served. Because in both cases an assessment of the actual amount of land tax payable in respect of the land had been made prior to the date fixed for completion, payment of that amount upon completion would remove the land from the charge absolutely. 48   If one looks solely at the second notice to complete in the present case, the land was subject to a land tax charge at the time of service of the notice and at the date fixed for completion, but land tax was not assessed at any relevant time. Those facts are distinguishable from the facts of McNally v Waitzer and the Maxsujur case, but they are the very facts envisaged by McLelland J in his dicta in Jillinda. If one looks solely at the first notice to complete, the position is that there was no land tax charge when the notice was served, but since the notice fixed a date for completion after 31 December 1996 in circumstances where the tax exemption for a principal residence occupied by the owner would not be available, a land tax charge was bound to arise prior to the date fixed for completion, and the amount of land tax would, again, not be assessed at any relevant time. In effect, the situation produced by the first notice to complete also falls within McLelland J’s observations in Jillinda. 49 It therefore falls to me to reconcile, as best I can, the decision of the Court of Appeal which overruled a decision of McLelland J, with later remarks by McLelland J which suggest that the Court of Appeal’s reasoning may break down in the very circumstances which are before me. The decision which I am to make could have important ramifications for conveyancing practice, in cases where a vendor of land subject to land tax wishes to give a notice to complete which straddles midnight on 31 December in a year, or which requires completion too early in the year for a land tax assessment to be issued prior to that time. 50 It appears to me that the correct resolution of the matter depends on a precise analysis of the vendor’s obligation, reinforced by s 57 of the Conveyancing Act 1919 (NSW), to give good title on completion. In Dainford Ltd v Yulora Pty Ltd (1984) NSW ConvR para 55-184 Rath J held that where land was subject to a land tax charge but the amount of tax had not been assessed, the purchaser was not required to accept on completion the vendor’s undertaking to pay the land tax when it was assessed. On appeal ([1984] 1 NSWLR 546, 550) the vendor accepted that since the liability was secured on the land, it was obliged to have the land tax charge removed as at settlement by payment of the assessed tax and not having done so, it was not in a position to settle. It appears to me that what was assumed by the parties in the Court of Appeal is importantly different from what was held by Rath J, and goes too far. Short of removal of a land tax charge by assessment and payment, protection from the charge in respect of specific land may be obtained by release of the land and the issue of a certificate under s 47. The certificate is conclusive evidence of the matter certified against the Chief Commissioner and in favour of any person, whether or not the person relying on the certificate is the person to whom the certificate was issued: s 47(1C). There are only two exceptions to this protective provision. The certificate is not conclusive evidence in favour of a person who:

(a) had notice, when the certificate was issued, of land tax charged on the land that the certificate failed to disclose, or
(b) was an owner of the land (other than a genuine purchaser for value who had not obtained possession of the land) when the certificate was issued.

51 Given the protection which the procedure of release of specific land followed by the issue of a s 47 certificate offers, I do not believe it is accurate to say that a vendor of land must in all cases remove the land tax charge prior to completion by paying land tax assessed in respect of the owner’s total land holdings. In my opinion the vendor’s obligation to give good title on completion is discharged if on completion, the purchaser and persons acquiring interests under the purchaser have the protection conferred by s 47(1C) by virtue of the issue at or prior to completion of a certificate that no land tax is charged on the land, procured by release of the land on payment of an amount estimated by the Office of State Revenue. The fact that at an earlier time, the purchaser may have obtained a s 47 certificate which stated that the property was subject to land tax in an unassessed amount does not mean that after receiving that certificate the purchaser has notice of land tax that a subsequent clear certificate fails to disclose. But any doubt on that score could be removed by endorsing the clear certification on the purchaser’s previous certificate. 52 Once one accepts that the vendor’s obligation is discharged by giving the purchaser and others the protection of s 47, it seems that the only remaining question is whether the law requires that the vendor must put in place arrangements with the Office of State Revenue for the issue of a clear certificate on completion (no doubt in most cases, upon payment to the Office of State Revenue of an estimated amount) before the notice to complete is served, or whether it is sufficient that those arrangements are made and notified to the purchaser in time for completion on the day which the notice fixes for completion. 53 If I were to approach that question solely as one of principle, without governing authority, I would say that the notice is ineffective unless it is true, on the facts as they exist at the time when the notice is given, that the vendor is able to make arrangements with the Office of State Revenue for the issue of a clear certificate, and is ready and willing to do so. To take an extreme case, if the facts showed that at the time of the service of the notice, the amount required to discharge mortgages and pay the amount likely to be estimated by the Office of State Revenue would exceed the purchase price, and that the vendor could not afford to provide the balance, the notice would be ineffective. In my opinion the notice would also be ineffective if, no prior arrangement for release of the land having been made, the evidence showed that the Office of State Revenue would only exercise the power to release land upon payment of an estimated amount in exceptional circumstances. Perhaps the notice would be effective if the evidence showed that the Office of State Revenue had adopted the practice of releasing land on payment of an estimated amount routinely or in normal circumstances. 54 If one approaches the issue in this way, it seems to me that the apparent point of difference between the Court of Appeal and McLelland J dissolves. Hutley JA’s remarks in the Court of Appeal proceed on the factual assumption that there will be no obstacle to the vendor freeing the land from the land tax charge on or prior to completion. This is clearly so if land tax has been assessed before the notice is served, and it is also the case if land tax is assessed after service of the notice but before the date fixed for completion. It is also true, in the absence of a relevant assessment, if it is clear that at the time of service of the notice the Office of State Revenue will release the land upon payment of an estimated amount out of settlement moneys. In any of those situations, there is no lack of readiness on the part of the giver of the notice which would excuse the recipient from failing to complete on the date originally fixed by the contract for completion. Consequently the recipient’s failure to complete at the contractual time for completion is a default justifying the issue of the notice. The concern expressed by McLelland J does not arise in such a case. But where there is a real doubt, at the time of service of the notice, as to whether the vendor is in a position to obtain a land tax clearance by the date for completion nominated in the notice, the vendor is not able, ready and willing to proceed to completion and conversely, the purchaser cannot be said to have defaulted by not completing at the contractual time for completion. The situation is then analogous to the facts of Halkidis v Bugeia, where the contract provided for vacant possession and at the time when the vendors served a notice to complete, the premises were tenanted and a notice to quit had not been given. 55   If it were necessary for me to apply these principles to the first notice to complete in the present case, I would have a real doubt as to whether the notice was effective. While there was no land tax charge at the date of service of the notice, it fixed a time for completion after 31 December in circumstances where there would be a land tax charge at the nominated completion time. Although the evidence shows that the plaintiffs were able to make arrangements with the Office of State Revenue on 6 or 7 January 1997 for release of the land on payment of an estimated amount, the evidence before me leaves me in doubt as to whether the plaintiffs were able, as well as ready and willing, to do so on 20 December 1996 when the notice was issued. However, it is not necessary for me to resolve this question, since I am clear that the second notice to complete complies with the requirements of the law. By the time that the second notice was issued on 13 January 1997, the plaintiffs had established arrangements with the Office of State Revenue for release of the land on payment of an estimated amount. In view of those arrangements, the plaintiffs’ position with respect to land tax was as a practical matter analogous to the position of a vendor who has a mortgage to discharge, and the principles stated in McNally v Waitzer are in my opinion applicable. The fact that a mortgagor has a legal right to discharge the mortgage whereas vendors in the position of the plaintiffs would have to rely on a favourable exercise of a statutory discretion to obtain a release from land tax does not seem to me to destroy the analogy, because in my opinion the Court should have regard to the practical circumstances. My conclusion implies that a vendor who first makes proper arrangements with the Office of State Revenue may proceed to issue a notice to complete which requires completion well before a land tax assessment is available.

Content of the notices to complete

56   The first and second notices to complete were in the same form. After reciting relevant terms of the contract for sale and asserting that the purchaser had failed to complete and that the vendors were ready willing and able to complete, the notice proceeded to make time of the essence of the contract and of the essence in respect of the notice, and required the purchaser to complete by a nominated date and time at a specified place. The notice proceeded:

‘Should you fail to comply herewith the vendor will then either rescind the said Agreement for Sale or sue for specific performance in accordance with the said Agreement and shall hold you liable for all damages costs and losses incurred by the vendor by reason of your default in performing the said Agreement.’

57   The requirements for the content of a valid notice to complete were set out by Jordan CJ in O’Brien v Dawson (1941) 41 SR(NSW) 295, 304, as follows:

‘The time prescribed by such a notice must be reasonable and the notice must state with reasonable explicitness what it is that is being required to be done… and that if it be not done within the time prescribed the party who has given the notice will treat the contract as at an end, or will treat himself as entitled to put an end to it.’

58 The first two conditions have clearly been complied with here. The first defendant submits, however, that the third condition has not been met, because the notice in the present case sets out two alternative consequences of non-compliance, namely termination or specific performance. The first defendant also submits that the contract did not authorise transmission of the notices by facsimile. I reject that submission on the ground that whatever the contract initially provided, the evidence shows that each party acquiesced in communications being made between their respective solicitors by facsimile. 59 Prior to the introduction of the judicature system and the enactment (at an earlier time in New South Wales) of s 13 of the Conveyancing Act 1919 (NSW), which requires that stipulations as to time must receive in all courts the same construction and effect as they would have had in a court of equity, breach of a contractual stipulation as to time would have entitled the innocent party to terminate the contract at law. However, equity would intervene, at the suit of the party in default, to grant relief against the loss of the contract, typically by ordering specific performance. Equity countermanded the contractual stipulation as to time, but that was explained on the basis that time was not ‘of the essence’ in equity unless there was an express or implied contractual provision to that effect or due notice was given. In that intellectual framework, the function of notice to complete was to provide a mechanism, where a non-essential stipulation as to time had been breached, for the innocent party to destroy the defaulter’s right to equitable relief against termination, after the expiration of a specified reasonable period. Once s 13 was enacted and particularly after the fusion of the jurisdiction of courts of common law and equity, courts have sometimes explained the function of a notice to complete by reference to general contractual concepts rather than pure principles of equity, treating the notice to complete, and failure to comply with it, as evidence demonstrating that the party in default has repudiated the contract, thus putting beyond question the innocent party’s right to terminate (see esp Taylor v Raglan Developments Pty Ltd [1981] 2 NSWLR 117, 131; Ciavarella v Balmer (1983) 57 ALJR 632, 635, approving observations by Glass JA [1983] 2 NSWLR at 449). This analysis appears to be based on s 13, which prevents the common law from recognising termination for breach of a non-essential time stipulation, with the result that failure to comply with the notice to complete establishes the innocent party’s common law right of termination for breach of a time stipulation, rather than merely extinguishing the defaulting party’s right to equitable relief to prevent termination. Nevertheless the impact of the notice to complete on the availability of equitable remedies remains of first importance, for it is equity rather than the common law which has shaped the requirements for a valid notice. As Deane and Dawson JJ said in Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, 652:

‘In identifying the requirements of a valid notice to complete or perform, it may be important to bear in mind that the purpose and operation of such a notice must be explained by reference to equitable doctrine and that the rules relating to the requirements of such a notice reflect the traditional equitable notions of fairness and good conscience.’

60   Given its equitable origins, the purpose of a notice to complete is, as Deane and Dawson JJ said, to give reasonable warning to the party in default, so as to remove any basis for a claim by that party that it would be inequitable or unconscionable for the innocent party to rescind. If that is the purpose of a notice to complete, the essential ingredient of the warning, apart from specifying what the giver requires to be done and prescribing a time which is reasonable, is to convey to the recipient that if the notice is not complied with, the defaulting party will no longer have any basis for holding the giver of the notice to the contract. This ingredient is supplied if the notice states that if completion does not occur as required by the notice, the giver will terminate the contract (assuming, of course, that the statement in the notice is not countermanded or waived by other conduct). It is sufficient if the giver’s intention to terminate is communicated by the notice when read in the light of surrounding conduct and circumstances, even if the notice is itself ambiguous. Thus in Balog v Crestani (1975) 132 CLR 289 a notice which said ‘in default the vendor will exercise his power under the contract without further notice’ was held to be adequate because the history of the matter showed that the power which the giver intended to exercise was the power to terminate. However, while it is sufficient for the giver to convey an intention to terminate, it is reasonably clear from modern authorities that it is not necessary for the giver to do so. Sir Frederick Jordan said it was enough for the giver to convey an entitlement to terminate. Although in Balog Gibbs J said that Jordan CJ had ‘enlarg[ed] somewhat the traditional statement of the rule’, he contemplated (132 CLR at 298) that it may be enough for the giver to indicate that he will rely on his rights if the other party fails to comply with the notice, and found it unnecessary to decide the point. But Deane and Dawson JJ in Laurinda (166 CLR at 654) were firmly of the view that a notice is adequate to warn the defaulter if it conveys that the giver will be entitled in the event of non-compliance, or will regard himself as entitled, to rescind. 61 There at least two good reasons for this view, as Deane and Dawson JJ acknowledged in Laurinda (166 CLR at 653-4). One is that an effective notice binds both the giver and the recipient. If the giver fails to complete at the time nominated by the notice, the recipient of the notice is then entitled either to terminate the contract or institute proceedings for specific performance. The giver of the notice must enjoy the same rights if the recipient defaults. That being so, it would be bizarre if equity were to require that the notice to complete should nominate an election to terminate rather than to enforce the contract, prior to the occurrence of the events which would otherwise allow the giver to elect between remedies. Secondly, if the notice states an intention to terminate but is an invalid notice, the giving of the notice might be regarded as wrongful repudiation of the contract, and it is inequitable to expose the giver of the notice to that risk. 62 I conclude, for these reasons, that a notice is adequate if it indicates, when read in the surrounding circumstances, that the giver will be entitled or will regard himself as being entitled to bring the contract to an end in the event of non-compliance. Clearly it is not necessary to convey that message in those very words. Both Gibbs J in Balog (132 CLR at 299) and Deane, Dawson and Brennan JJ in Laurinda (166 CLR at 654 and 646 respectively) favoured the view that it is sufficient for the notice to make it clear that the time fixed by the notice is to be treated as of the essence for performance of the contract. 63 The second notice in the present case makes it clear that the time which it fixes will be treated as of the essence for performance of the contract. The notice also makes it clear that the plaintiffs would regard themselves as entitled to terminate the contract if the first defendant did not comply. The sole remaining question is whether the addition of words signifying an alternative right to seek specific performance has invalidated what would otherwise clearly be a valid notice. In Balog Gibbs J said that ‘it must be regarded as doubtful’ whether such a notice would be effective (132 CLR at 297), but he noted that in Gostown Pty Ltd v Prior (1970) 92 WN (NSW) 882 Helsham J had a taken a contrary view, and he expressly refrained from deciding the question. While Deane and Dawson JJ did not resolve the question in Laurinda, in my opinion their remarks imply that a notice which indicates that time will become of the essence and the giver will be entitled to terminate is not invalid if it says that the giver will also be entitled to enforce the contract. As their Honours pointed out (166 CLR at 653), the recipient would have those alternative rights if the giver failed to complete at the nominated time, and therefore the giver must have those rights and it would be anomalous for equity to require the notice to elect between them prematurely. My conclusion, therefore, is that the second notice was not invalidated by referring to the alternative of specific performance, and consequently the second notice was not open to challenge on this basis. I would reach the same conclusion with respect to the first notice, were it necessary to do so, as the relevant wording is identical.

Content and timing of the notice of rescission

64   Clause 9 of the contract is in the following terms:

‘9. Purchaser’s default
If the purchaser does not comply with this contract (or a notice under or relating to it) in an essential respect, the vendor can terminate by serving a notice and then -
9.1 keep or recover the deposit (except so much of it as exceeds 10% of the price);
9.2 hold any other money paid by the purchaser under this contract as security for anything recoverable under this clause -
9.2.1 for 12 months, or
9.2.2 if the vendor commences proceedings under this clause within 12 months unless those proceedings are concluded; and
9.3 sue the purchaser -
9.3.1 to recover damages for breach of contract; or
9.3.2 where the vendor has resold the property under a contract made within 12 months after termination, to recover the deficiency on resale (with credit for any of the deposit kept or recovered), and the reasonable costs and expenses arising out of the purchaser’s non-compliance with this contract of resale and any attempt at resale.’

65   The second notice to complete required the first defendant to complete the contract by 28 January 1997 at 12 noon at a nominated place. The deadline was extended twice by letter, so that it eventually became 4pm on the same day. In my opinion those extensions were effective in the sense, at least, that the plaintiffs would have been estopped by the letters from complaining of failure to complete at the earlier time. The plaintiffs purported to ‘terminate and rescind the Agreement’, and declared the deposit forfeited and claimed damages, by a document entitled ‘Notice of Rescission’ dated 28 January 1997. That document recited the making of the Agreement for Sale and that ‘the vendors pursuant to that Agreement rely on a default by the purchaser in an essential respect under the contract and notices served pursuant thereto’. 66   The first defendant complains that these words do not specify the breach relied on for the purpose of termination. I reject this submission. The Notice of Rescission refers to a default by the purchaser in an ‘essential respect’ and to ‘notices’ served pursuant to the contract. Given that the Notice of Rescission followed the serving of the two notices to complete, it is plain that the reference to ‘notices’ is a reference to the two notices to complete and the reference to a default ‘in an essential respect’ refers to the fact that the notices to complete expressly made the nominated completion time of the essence of the contract. In those circumstances the breach specified in the Notice of Rescission must be the failure to complete by the times nominated in the two notices to complete. I have held that the second notice to complete was effective, while not deciding whether the first notice to complete was rendered ineffective by the plaintiff’s failure to make arrangements for land tax clearance before the notice was served. Since the notice of rescission relies, in my opinion, on failure to complete in accordance with, inter alia, the second notice, the Notice of Rescission is effective to terminate the contract. 67   The evidence of service of the Notice of Rescission is sketchy. It includes a copy of a letter to the first defendant dated 28 January 1997 enclosing the Notice of Rescission, but there is nothing to indicate how the letter was sent. If it had been served prior to 4pm on 28 January 1997 (or perhaps at any time on 28 January 1997), it would have been ineffective, since the time specified in the second notice to complete, as extended, did not expire until 4pm or possibly midnight on that day. 68   A letter from Helliars City to the second defendant dated 30 January 1997 asserts that the Notice of Rescission was served on the first defendant’s solicitors on 29 January 1997. The first defendant contended that this letter cannot be treated as evidence as to the date of service of the notice, and referred to the principle in Jones v Dunkel (1959) 101 CLR 298, that if a party fails to adduce seemingly material evidence without explanation then the court may infer that, had that evidence been adduced, it would not have assisted the party’s case. But in this matter evidence as to the date of service has been tendered and that evidence is the letter. It is not the case that the plaintiffs have failed to adduce any material evidence of the fact in issue. I accept the plaintiffs’ submission that it would carry the principle in Jones v Dunkel too far to find that the plaintiffs’ failure to produce more compelling evidence as to the date of service entitles me to draw the inference that such evidence would not have assisted the plaintiffs’ case. In view of the evidence represented by the letter of 30 January 1997, and in the absence of any evidence to the contrary, I find that the Notice of Rescission was served on first defendant on 29 January 1997.

Conclusions and orders

69   The plaintiffs were entitled to terminate the contract when the first defendant failed to complete on 28 January 1997, because the second notice to complete was effective. They terminated the contract by written Notice of Rescission on 29 January 1997. Clause 15 and special condition 2 of the contract authorised the giving of the notices to complete. Since the second notice to complete made time of the essence and the first defendant did not comply, clause 9 then applied to authorise the plaintiffs to terminate by serving a notice, as they did. The consequences according to clause 9 are that the plaintiffs are entitled to recover the deposit which is held by the second defendants, and sue the first defendant to recover damages for breach of contract. 70   The plaintiffs are entitled to declarations that the second notice to complete was effective to make the time which it nominated an essential time for completion, and that the Notice of Rescission was effective to terminate the contract on 29 January 1997. They are entitled to an order that the second defendant pay them the deposit together with the interest which that amount has earned in the hands of the second defendant. The plaintiffs are also entitled to recover damages for breach of contract. Since no evidence was led for the purpose of quantifying the plaintiffs’ damages, I propose to make an order for the assessment of damages by the Master. The first defendant’s cross-claim should be dismissed. I shall ask the plaintiffs’ counsel to prepare short minutes of the orders which I propose. 71   I propose to order that the first defendant pay the plaintiffs’ costs of the summons and cross-claim. However I shall make provision that my order for payment of costs should take effect only seven days after my making of the orders, and I shall grant any party liberty to apply to me on any week day on 24 hours’ notice to the other parties, with the intention that the liberty should be exercised by any party who wishes to make a submission on the question of costs before my order for costs becomes effective.

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