Kurnnan & Anor v Pivovarova [2012] NTSC 48

 

PARTIES:                                         KURNNAN, Satheesh Kumar Madathil

 

                                                         And:

 

                                                         SATHEESH, Deepthi

                                                                                                             

                                                         v

 

                                                         PIVOVAROVA, Tatiana

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          LA 6 of 2011 (21110241)

 

DELIVERED:                                   17 July 2012

 

HEARING DATE:                             2 March 2012 and28 June 2012

 

JUDGMENT OF:                              BARR J

 

CATCHWORDS:

 

LOCAL COURT – APPEAL AND CROSS-APPEAL – ERROR OF LAW

Magistrate found in favour of respondent (plaintiff) and awarded damages for breach of contract – case decided on a breach not pleaded and not relied on by respondent – error of law but result correct – appeal dismissed, cross-appeal allowed and judgment awarded in favour of respondent

 

CONTRACTS – SALE OF LAND – BREACH OF CONTRACT

Agents Licensing Act (NT) – standard form contract approved under s 121A – interpretation of finance clause – purchasers’ right to rescind following failure to obtain finance – contract became unconditional as to finance upon purchasers’ failure to comply with obligations under finance clause – vendor entitled to terminate contract and claim damages for breach after purchasers failed to complete unconditional contract

 

Agents Licensing Act (NT) s 121A

Local Court Act s 19

 

BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, followed

 

Alice Springs Town Council v Mpwetewerre Aboriginal Corporation and Others (1997) 115 NTR 25; Dodds v Kennedy (No 2) (2011) WASCA 131; Meehan v Jones (1982) 149 CLR 571, considered

 

REPRESENTATION:

 

Counsel:

    Appellants:                                   G Phelps

    Respondent:                                  Self represented

 

Solicitors:

    Appellants:                                   Ward Keller Lawyers

    Respondent:                                  Self represented

 

Judgment category classification:    B

Judgment ID Number:                       Bar1209

Number of pages:                             23


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Kurnnan & Anor v Pivovarova [2012] NTSC 48

No. LA 6 of 2011 (21110241)

 

 

                                                     BETWEEN:

 

                                                     SATHEESH KUMAR MADATHIL KURNNAN

                                                     First Appellant

 

                                                     And:

 

                                                     DEEPTHI SATHEESH

                                                         Second Appellant

 

                                                     AND:

 

                                                     TATIANA PIVOVAROVA

                                                         Respondent

 

CORAM:     BARR J

 

REASONS FOR JUDGMENT

 

(Delivered 17 July 2012)

 

Introduction

[1]       For consistency and ease of reference, I will refer to the appellants as “the defendants” and the respondent/cross-appellant as “the plaintiff”. 

[2]       The magistrate in the Local Court found in favour of the plaintiff, but he did not decide the plaintiff’s case as pleaded.  As a result, his Honour made findings and reached conclusions on some matters which should not have been decided.  This led the defendants to appeal the correctness of those aspects of the magistrate’s decision.  

[3]       The Local Court Act limits appeals to questions of law.  After determining an appeal, the Supreme Court “may make such order as it thinks fit, including an order remitting the case for re-hearing to the (Local) Court with or without directions on the law.”[1]

[4]       For reasons which I set out below, I find that the magistrate erred in law.  Nonetheless, I have determined that the result in the Local Court was correct.  I propose to dismiss the appeal, allow the cross-appeal and give judgment in favour of the plaintiff (but on a different basis to that on which the magistrate found in her favour).  I also propose to make a costs order in favour of the plaintiff in respect of the Local Court proceeding.  

The case in the Local Court

[5]       Although a solicitor acted for the plaintiff at an earlier time in the Local Court litigation, she represented herself at trial and on appeal to this Court.  The plaintiff is obviously intelligent, and legally capable, but she has a very strong accent and sometimes uses constructions which reflect her native Slavonic language.  The combination of strong accent and unusual sentence structure made her difficult to understand at times.  She also appeared to have difficulty expressing the negative, and, possibly to avoid using the double negative, did not use the negative on occasions when she clearly intended to convey the negative.[2]

[6]       The plaintiff’s statement of claim filed 25 March 2011 pleaded a claim for breach of contract.  The particulars of claim endorsed on the plaintiff’s statement of claim are set out below:

PARTICULARS OF CLAIM

1.        On or about 22 April 2010 the plaintiff (a seller) and defendants (a buyer) signed a contract of sale (“the Contract”) Unit 2, as Dashwood Place, Darwin NT 0800 (“the unit”).

2.        In accordance with the Contract the plaintiff agreed to sell the Unit and the defendants agreed to buy the Unit for $610,000.00.

3.        In accordance with the Contract the defendants agreed to pay to the plaintiff a purchase price of the Unit on 10 May 2010 (“Completion”).

4.        On 27 April 2010 the defendants applied for a home loan with Colonial Commonwealth Bank (“CBA”) instead of obtaining finance as set out in the Contract (Item O) and accordingly Completion of the Contract became unconditional.

5.        On or about 28 April 2010 the plaintiff received a notice from the defendants asking to amend the Contract (subject to plaintiff’s approval) including extension of Completion, changing the lender from AMP to CBA, extension of date of approval, early possession at nil fee and some others.

6.        On or about 29 April 2010 the plaintiff received a notice from the defendants asking for extension of cooling period until such time as the defendants received a response from the plaintiff.

7.        Between 28 April 2010 and 7 May 2010 the plaintiff and the defendants tried to negotiate some amendments to the contract requested by the defendants but no amendments were agreed to as the defendants did not agree to pay a default interest to the plaintiff due to extension of Completion.

8.        On Completion the defendants have failed to pay to the plaintiff a full purchase price for the Unit.

9.        On or about 11 May 2010 the plaintiff sent a notice to the defendants requiring completion of settlement on 14 May 2010.

10.    On or about 12 May 2010 the plaintiff received a notice from the defendants where the defendants rescinded the Contract pursuant to Clause 30 (Cooling Off) as the defendants did not agree to the penalties (interest on late payments).

11.    On or about 12 May 2010 the plaintiff sent a notice to the defendants advising that the defendants cannot rescind the Contract pursuant to Clause 30 (Cooling Off).

12.    On 14 May 2010 the defendants have failed to pay to the plaintiff a full purchase price for the Unit.

13.    On or about 21 May 2010 the plaintiff sent a notice to the defendants advising:

·     All correspondence should be sent directly to the plaintiff as their conveyancer is not able to continue this correspondence;

·     The plaintiff is not excepting [accepting] the rescission notice from the defendants;

·     The defendants have defaulted pursuant to Clause 3.1 (Completion and Possession) and Clause 17.1 (Interest on Late Payments) and the defendants are requiring that the default be remedied within 10 days.

14.        The defendants failed, refused and/or neglected to pay to the plaintiff the monies owing pursuant to the terms of the Contract within 10 working days of a notice of default.

15.        On or about 7 June 2010 the plaintiff sent a notice to the defendants advising:

·     The defendants failed to remedy the default pursuant to Clause 3.1 and 17.1 and the Contract is terminated pursuant to Clause 20 (Buyer’s Default);

·     According to Clause 20 (Buyer’s Default) of the Contract the plaintiff has the right to sue the defendants for damages for breach, resell the property and recover from the defendants any liquidated damages.

16.        On or about 9 June 2010 the plaintiff received a notice from the defendants advising:

·     This matter is in the hands of a solicitor (Midena Lawyers) and they will be contacting the plaintiff in due course.

·     The deposit money will be held in trust pending the outcome of this matter.

17.        After 7 June 2010 the plaintiff put the Unit on the market for selling.

18.        On 20 August 2010 the Unit was sold for $610,000.

19.        By reason of the matters pleaded herein, the defendants are in breach of the Contract.

20.        The plaintiff is entitled to sue the defendants for damages in breach of Contract.

[7]       The plaintiff’s case, by reference to her statement of claim, paragraphs 4, 8, 12 and 14 and following paragraphs, was that the contract between the parties became unconditional as to finance.  The defendants breached the contract by not paying the agreed purchase price and interest and thus not completing the contract.  The plaintiff issued default notices and terminated the contract.  After re-selling the property, she claimed damages from the defendants for their breach of contract.

[8]       It is common ground that the parties entered into a contract for the sale/purchase of the plaintiff’s home unit in Darwin for $610,000.  The contract was made on 22 April 2010.[3]  Completion of the contract was conditional upon the defendants as purchasers obtaining finance in the sum of $610,000 from AMP.  The ‘finance clause’ was clause 24 of the contract, extracted below:

“FINANCE

If Item O has been completed, completion of this Contract is conditional upon the Buyer obtaining finance as set out in Item O, and the following shall apply:

(a)         the Buyer must promptly apply to the Lender or Lenders specified in Item O (“the Lender”) for the loan or loans in the amount(s) specified in Item O on the Lender’s prevailing conditions as to interest rate, term, and rate of repayment;

(b)        the Buyer must take all reasonable steps to obtain the loan and must sign all loan and security documents, do all acts, and pay all fees that the Lender may reasonably require.  If the Buyer is a corporation, it must procure the execution of any guarantees and indemnities required by the Lender by the Buyer’s directors.  The inability of the Buyer to secure any directors’ guarantees required by the Lender shall be construed as a refusal to accept the loan;

(c)        the Buyer must give notice to the Seller that:

(i)          the Buyer has failed to obtain finance by the date for approval specified in Item O and the Contract is rescinded; or

(ii)        this finance clause has either been satisfied, or waived by the Buyer;

(d)        the Seller may rescind this Contract by notice in writing to the Buyer if notice is not given to the Seller under clause 24(c) by 5 pm on the date for approval specified in Item O.  This is the Seller’s only remedy for a failure by the Buyer to give notice under clause 24(c); and

(e)        the Seller’s right under clause 24(d) is subject to the Buyer’s continuing right to rescind this Contract under clause 24(c)(i) or waive the benefit of this clause by giving written notice to the Seller.

[9]       Item O of the contract was completed.  The 'Lender' was named as "AMP".  That leads to the conclusion that the objectively determined intention of the parties was that AMP was to be the lender to which the defendants were obliged to apply for finance.  The amount of loan was $610,000.  The date for approval was Monday 26 April 2010.

[10]     The magistrate pointed out in his reasons for judgment[4] that the defendants were reckless in entering into a contract on Thursday 22 April with the agreed date for approval of finance being Monday 26 April (the Anzac Day public holiday in 2010), in circumstances where (1) the defendants were seeking a loan equal to the full amount of the purchase price of the unit; and (2) they had no relevant commercial relationship with AMP and had no preliminary or in-principle approval from AMP for a loan.  Mr Kurnnan could not even remember how it had come about that he had agreed to the insertion of AMP as the lender in Item O of the contract. 

[11]     The defendants’ conveyancer was provided with the contract signed by his clients and immediately became concerned by the shortness of time agreed for the approval of Finance.  He contacted an Adelaide finance broker retained by the defendants and was told, probably on 22 April, that the finance broker considered that finance would not be approved by any finance provider within the time set by the contract.  That finance broker informed the conveyancer that the defendants were more likely to obtain finance from the CBA (Commonwealth Bank) rather than from AMP, because the defendants had existing secured loans with CBA.  The defendants’ conveyancer amended the defendants’ counterpart of the contract to change the name of the Lender from AMP to CBA, and then informed the plaintiff’s conveyancing agent of the change.  It was conceded by the defendants at trial that the amendment by their conveyancing agent did not bind the plaintiff.[5]  However, it would appear that the defendants’ conveyancer believed that the contract had been successfully amended by agreement, a belief which the magistrate considered had been contributed to by the fact that the conveyancer purported to make the amendment within the "cooling off" period permitted in the contract.

[12]     The "cooling off" clause applied because the contract came into force without the defendants’ conveyancer being involved in the exchange of signed counterparts of the contract, and, if utilised by the defendants within four working days[6] of the signed copy contract being delivered to their conveyancer, would have enabled them to rescind the contract.  The defendants did not, however, avail themselves of the "cooling off" clause within the time permitted by the contract.  

[13]     The defendants did not apply to AMP for finance to purchase the plaintiff’s home unit.  Moreover, they were unsuccessful in their finance application to CBA.

[14]     The magistrate made the following findings in par [14] of his reasons for judgment:

“It is in my view clear that the defendants were in breach, in both alleged ways, of clause 24.  They were bound to apply to AMP for finance and they never did.  They were bound to apply for $610,000, and they never did – they applied for more.  The first breach may have been inconsequential.  The second may not. …  On the evidence before me the defendants’ breach in relation to the amount of the loan sought was probably the cause of the finance being refused and therefore of the contract’s failure and therefore the cause of any consequential loss suffered by Ms Pivovarova.”

[15]     His Honour thus found two breaches of contract on the part of the defendants: the first, that they did not apply to AMP for finance to purchase the unit, but instead applied to the CBA; the second, that they applied for a loan in the sum of $644,339 instead of the amount specified in the contract, $610,000.  He then considered causation and attributed the failure of the contract and the consequential loss suffered by the plaintiff to the second breach.

Issues on appeal

[16]     The defendants' first ground of appeal is that the magistrate found the defendants had committed a breach of contract in applying for a loan amount other than the amount specified in Item O of the contract, in circumstances where the plaintiff did not plead or particularise any such breach against the defendants.  The defendants’ complaint is justified.  They did not expect at trial to have to meet a case based on that alleged breach.  To the extent that the magistrate’s findings went outside the pleadings, there was a breach of the rules of natural justice and an error of law.  I would find for the defendants on their first ground of appeal.  However, this does not mean that the appeal must be allowed.  An appeal will only succeed on an error of law if the error is one upon which the decision depends and is such as to vitiate the decision appealed from.[7]  In light of my further findings below, this initial finding does not affect the outcome of the appeal, because of the more significant error on the part of his Honour which I shall now explain.

[17]     The magistrate misunderstood the nature of the plaintiff's case as pleaded, and as it was conducted by her at trial.  His Honour decided the case on the basis of a breach which the plaintiff did not plead and did not intend to plead as a breach giving rise to her claim for damages (I refer to the second breach identified and discussed in pars [14] and [15] above).  The plaintiff’s case was that the defendants breached the finance clause (in the sense that they did not comply with their obligations under that clause) by not making an application to AMP for finance.  However, the plaintiff did not contend that that breach gave rise to a claim in damages for breach of contract.  Rather, she argued that the effect of the breach was that completion of the contract was no longer conditional upon the defendants’ obtaining finance; that they no longer had the protection of clause 24 of the contract.  The breach on the part of the defendants relied on by the plaintiff to claim damages for breach of contract was their subsequent failure to complete the unconditional contract.

[18]     The misunderstanding on the part of the magistrate is illustrated in the following interchange with the plaintiff:

"MS PIVOVAROVA: … it means, in my opinion, they’re (inaudible) unconditional, because they never apply to the lender.

HIS HONOUR: I think it’s pretty hard to argue that the contract here has ever become unconditional.

MS PIVOVAROVA: But contract is saying completion of this contract is conditional upon the buyer is obtaining.

HIS HONOUR: Yes.

MS PIVOVAROVA: Obtaining the process.  It’s continuous process.  Only when they stop obtaining which was done on the first day of the contract, they on the first day of the contract decided to not go with AMP. ….".[8]

[19]     The defendants, also, misunderstood the nature of the plaintiff's case, and their misunderstanding substantially contributed to the magistrate’s error.  The defendants did not properly appreciate that the plaintiff was claiming damages for the defendants’ breach of the unconditional contract in failing to complete.  Although the defendants alleged that they validly rescinded the contract, by notice, in reliance on their failure to obtain finance,[9] they also argued at trial that the failure to apply to AMP for a loan made no difference in that AMP would have refused the loan in any event.[10]  This legally irrelevant causation argument, with references to the “but for” test, led the magistrate to assess the causes of the contract’s “failure” as appears in par [14] above.  In doing so, his Honour fell into error.

[20]     The plaintiff in her cross-appeal attempted to identify the error in the magistrate's approach, in the following terms (irrelevant parts omitted):

"The learned magistrate erred in law:

1. In finding that the Appellants failed to comply with the Finance Clause 24 of the contract and therefore the completion of the contract became unconditional. ….."

[21]     It is clear that the plaintiff intended to say that the magistrate erred in law in not finding, that is, failing to find, that the defendants failed to comply with the finance clause of the contract, and that therefore the completion of the contract became unconditional.

[22]     The plaintiff has been consistent throughout in pursuing the case pleaded by her.  Although the magistrate expressed doubt as to the key proposition on which her case rested (ie, that the contract became unconditional as to finance), she did not resile from or abandon her case in that respect.

Did the contract become unconditional?

[23]     Clause 24 of the Contract of Sale between the parties[11] required that the defendants promptly apply to the nominated Lender, AMP, and to then take all reasonable steps to obtain the loan: sign all loan and security documents, do all acts, and pay all fees that AMP might reasonably require.  As the magistrate found, the defendants did not apply for finance to AMP.  There is no challenge to that finding.  

[24]     Whether the plaintiff had the right to terminate as she did and to claim damages for breach of contract depends upon the interpretation of clause 24 of the contract, extracted in par [8] above.  

[25]     The defendants argue that the combination of sub-paragraphs (c)(i), (d) and (e) mean that the defendants throughout had a continuing right to rescind the contract under clause 24(c)(i).  The plaintiff contends otherwise.  She argues that the words “the following shall apply” in the introductory sentence to clause 24, and the words “the Buyer must” in each of sub-paragraphs (a) and (b) of clause 24, meant that the right of the defendants to give notice to the plaintiff vendor under clause 24(c)(i) (“that the Contract is rescinded”) was conditional on the defendants having first complied with each of sub-paragraphs (a) and (b).

[26]     The plaintiff’s contention is correct.

[27]     Clauses in sale and purchase contracts making the purchase ‘subject to finance’ have been regarded by courts as primarily for the benefit or protection of the purchaser.[12]  In my view, the subject to finance’ clause in the contract between the parties to this appeal was primarily for the benefit of the purchaser.  The defendants (as purchasers) had the right to rescind the contract in the event they failed to obtain finance by the date for approval specified in Item O.  They also had the right under clause 24(c)(ii) to waive the ‘subject to finance’ clause.  The plaintiff vendor thus could not rescind the contract on account of the defendant purchasers’ failure to obtain finance from the nominated Lender if the purchasers still wished to proceed, notwithstanding the non-approval of their finance, and were prepared to waive their right to rescind under the ‘subject to finance’ clause.  However, all the defendants’ rights under clause 24(c) were subject to compliance on their part with their obligations under each of sub-paragraphs (a) and (b) of clause 24.   

[28]     There was no express condition precedent to the purchasers’ right to rescind that the purchasers must have complied with the purchasers’ obligations under each of sub-paragraphs (a) and (b) of clause 24.  Nor did the contract between the parties have an express condition in the same or similar terms to that in Dodds v Kennedy, a decision relied on by the plaintiff.[13]  In my opinion, however, there was an implied condition precedent to the purchasers’ right to rescind that the purchasers must have complied with the purchasers’ obligations under each of those preceding sub-paragraphs.  The purchasers’ right to rescind was ‘set’ in the context of a loan application process expressly provided for, and followed in sequence after the imposition of express obligations on the purchasers.  The implication of a term that the defendants’ rights under clause 24(c) were subject to compliance on their part with their obligations under each of sub-paragraphs (a) and (b) of clause 24 is all of the following: so obvious that ‘it goes without saying’; capable of clear expression; reasonable and equitable; consistent with the defendants’ other rights and obligations under clause 24; and necessary to give business efficacy to the finance clause.[14]  In this consideration, one may ask what purpose would be served by the inclusion of obligations on the part of the purchasers, by reference to an approval date, if the purchaser could rescind at any time notwithstanding non-compliance with those obligations?  

[29]     Because the defendants did not (at any stage) apply for finance to AMP, they had no right (at any stage) to rescind the contract under clause 24(c).  The legal effect of the defendants’ failure to apply to AMP for a loan was that the contract ceased to be conditional as to finance.  In my view, the plaintiff was correct in treating the contract as remaining on foot.  

Further consideration of the plaintiff’s case

[30]     I have decided not to remit this matter for re-hearing by the Local Court.  I propose to decide the plaintiff’s claim on the facts found by the magistrate, and any relevant undisputed evidence.  I note that, notwithstanding the misunderstandings described in pars [17] to [19] above, the defendants conducted their defence to include a case that they had validly rescinded the contract on the basis of their failure to obtain finance.  For reasons summarised in par [29], that ground of defence must fail.  On the further hearing of this appeal, I enquired of counsel for the defendants as to whether, in the event I found for the plaintiff on her cross-appeal, there was any reason why I should not proceed to determine the plaintiff’s case on the evidence before the Local Court.  Counsel conceded that the defendants would not have adduced any further evidence in response to the plaintiff’s claim.  However, he maintained the legal argument advanced in written submissions on appeal that the plaintiff should have given the defendants ‘notice on default’ under clause 18.1 of the contract with respect to the defendants’ failure to apply to AMP for a loan.  It was contended on behalf of the defendants that the plaintiff’s failure to give such ‘notice on default’ meant that the plaintiff did not have the right to terminate the contract under clause 20.1.

[31]     Clause 18.1 read as follows:

18.1   Neither the Seller nor the Buyer shall be entitled to terminate this Contract on the ground of the other’s default in performing or observing an obligation imposed on that other party under this Contract unless:

(a)     the party not in default has first given to the party in default a written notice specifying the default complained of, and requiring that the default be remedied within the period stipulated in the notice; and

(b)     the party in default fails to remedy the default within the period stipulated in that notice.  

[32]     The clause applies where one party or the other is intending to terminate the contract on the ground of the other’s default, as the first sentence makes clear.  The clause did not apply to the situation where the defendants failed to apply to the nominated Lender, because the plaintiff did not seek to terminate the contract for that reason.  As is apparent from the communications between the parties extracted below, the plaintiff terminated the contract on account of the defendants’ default in failing to complete the contract.  I therefore reject the defendants’ argument that the plaintiff should have given the defendants ‘notice on default’ under clause 18.1 of the contract with respect to the defendants’ failure to apply to AMP for a loan.

[33]     I turn to consider whether, on the case pleaded, and on the evidence before the Local Court, the plaintiff was entitled to a judgment for breach of contract in the amount assessed.  I will refer once more to the facts summarised in pars [8], [9] and [13] above, and to the relevant communications between the parties from 11 May 2010 onwards. 

[34]     On 11 May 2010 the plaintiff’s conveyancing agent wrote to the defendants’ conveyancing agent in the following terms:

“It is the Vendor’s opinion, the time frames provided in the contract having elapsed, that the Purchasers are now estopped from advising that finance is not approved.  The Vendor therefore requires settlement on 14 May 2010 in accordance with the enclosed settlement statement.

 

 

Should settlement not take place on 14 May 2010, the Vendor reserves the right to charge default interest at the rate prescribed in item N of the contract from 10 May 2010 and to apply default conditions in the contract or seek any other legal remedies available.”[15] 

[35]     Enclosed with the letter was a settlement statement for settlement on 14 May 2010.  No claim for default interest was made in the settlement statement.

[36]     The defendants then threatened to rescind the contract “in the extended cooling off period” and actually purported to rescind, as appears from their conveyancing agent’s letter to the plaintiff’s conveyancing agent dated 12 May 2010:

“… Our client will not agree to the penalties insisted on by your client and advise they are unreasonable.  If you and your client will proceed without those penalties then our clients will proceed also.  If you client disagrees then we have no alternative other than to rescind the contract in the extended cooling off period.

If your client does not agree: we hereby rescind the Contract of Sale dated 22 April 2010 pursuant to Clause 30 of Contract.”

[37]     The plaintiff’s conveyancing agent subsequently replied by letter dated 12 May 2010 to assert that the defendants had no right to rescind the contract pursuant to Clause 30 (the ‘cooling off’ clause).  Further, it was pointed out that the defendants had not provided a transfer to the vendor for signing.[16]

[38]     The plaintiff’s conveyancing agent wrote a further letter dated 12 May 2010 stating the plaintiff’s view that the defendants no longer had the right to rescind the contract pursuant to the finance provisions.[17]

[39]     Apparently undeterred, the defendants’ conveyancing agent replied to the plaintiff’s conveyancing agent on 12 May 2010 as follows:

“I refer to our prior communications and advise that my clients have failed to obtain finance and hereby rescind the Contract of Sale pursuant to Clause 24 (Finance).

Please authorise the agent to release the deposit monies at your earliest convenience.”

[40]     Subsequently, the plaintiff (who by now was acting on her own behalf) wrote to the defendants’ conveyancing agent by letter dated 21 May 2010, relevantly as follows:

“I advise that your rescission of the contract as set out in your letter received on 12.05.10 is invalid and accordingly of no force or effect.  … 

I am not excepting [accepting] the rescission notice from your clients, as they did not have any express right to rescind the Contract.  Your clients breached Conditions of the contract.

[41]     The letter continued at length, setting out numerous breaches.  The plaintiff then wrote:

“According to the contract your clients failed to pay the purchase price on the 10.05.10 and your clients failed to comply with other terms of the Contract.  On the 12.05.10 your clients did not have any express right to rescind the contract.  By the 10.05.10 they already breached the contract and they were liable for the damages I incurred. 

According to Condition of Contract 18 I notify your clients that they are in default by breaching reference Schedule H condition 3.1 and 17.1 of the Contract by refusing to settle by due date and pay compensation and they are requiring that the fault be remedied within the period of 10 days from today.

… If the purchasers will refuse to settle within 10 days I won’t have a choice as according to condition of the contract 20.1 (b) to terminate the contract, forfeit the deposit, resell the property without further notice to the purchasers and sue them for damages for breach.”[18]

[42]     Notwithstanding the words “they are requiring that the default be remedied” it was tolerably clear that the plaintiff was requiring the defendants to remedy their default.

[43]     Subsequently, by letter dated 7 June 2010, the plaintiff terminated the contract in the following terms:

“I refer to our previous correspondence in respect of the above matter and advise that your clients failed to remedy the default as set out in my letter dated 21.05.2010.  I hereby terminate the contract of sale and forfeit the deposit pursuant to condition of the contract 20 (Buyer’s default).  According to this condition of contract I have the right to sue your clients for damages for breach, resell the property and recover from your clients any liquidated damages so long as the resale is completed within 12 months of termination of this Contract.”[19] 

Conclusion

[44]     The plaintiff was entitled to terminate the contract pursuant to clause 20.1(b), having given the notice required by clause 18.1, on account of the defendants’ failure to remedy their default and complete the contract.  She was further entitled to forfeit the deposit, re-sell the property and sue for damages.

[45]     There is no issue on appeal as to the magistrate’s assessment of the plaintiff’s damages.  The plaintiff will therefore have judgment in the sum of $13,840.23, plus pre-judgment interest thereon under Local Court Rule 39.03 at the rate of 10.5% from 25 March 2011.   

[46]     In relation to the costs of the proceeding in the Local Court, there is an additional issue raised on the cross appeal that the learned magistrate, having found for the plaintiff, erred in his award of costs.  His Honour misunderstood the plaintiff’s costs claim and (without hearing from the plaintiff) allowed her the costs which had been endorsed on the initiating process, and not the costs to which she was properly entitled as the successful party at trial. 

[47]     The plaintiff is entitled to a costs order in her favour, and I therefore order that the defendants pay the plaintiff’s legal costs and disbursements of the Local Court proceeding, such costs to be allowed at 75% of the costs under the Appendix to Order 63 of the Supreme Court Rules.  The plaintiff’s costs should be taxed, if not agreed, by the Taxing Officer of the Local Court.

[48]     Although she has been successful, the plaintiff has not been represented on this appeal.  I would therefore propose to make no order as to her costs.  However, I will hear from the parties before I make any costs orders in relation to the appeal.

[49]     I direct that the parties file draft orders for settling, and I give liberty to apply should there be any further matter on which I am required to rule.

---------------------------

 



[1]    Local Court Act, s 19(1); s 19(6).

[2]    See, for example, grounds 1 and 2 of the Notice of Cross-appeal.

[3]    The contract was a standard form contract approved by the Registrar under s 121A(a) Agents Licensing Act (NT) – 11 August 2006 Version 2.

[4]    Tatiana Pivovarova v Satheesh Kumar Madathil Kurunnan and Deepthi Satheesh [2011] NTMC 046 at [4].

[5]    Reasons for Judgment par [8]: "part of the Defence originally pleaded relied on the efficacy of this amendment, but that pleading was abandoned at the hearing".  The defendants’ counsel informed the magistrate at AB14 that the defendants “would not press the point about our right to cool off.”

[6]    time was of the essence.

[7]    Alice Springs Town Council v Mpwetewerre Aboriginal Corporation and Others (1997) 115 NTR 25 at 35.25 per Mildren J, citing Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 esp at 177 per Handley JA.

[8]    Transcript 05/09/2011, pp64-65; AB42.

[9]    Defence paragraph 8(a), AB 80; Defence paragraph 13, AB 81.

[10]   Trial transcript at AB 15.

[11]   extracted in par [8] above.

[12]   Meehan v Jones (1982) 149 CLR 571, per Mason J at 588, 592.

[13] Dodds v Kennedy [No 2] (2011) WASCA 131, per Pullin JA at [3].  The contract there had a provision that if the purchaser did not the comply with requirement to immediately make an application for finance to the nominated lender and to use all best endeavours in good faith to obtain the finance, then the contract would not come to an end under the ‘subject to finance’ clause and the purchaser would not be entitled to terminate the contract under the finance clause.  

[14]   BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 347. 

[15]   AB 355.

[16]   AB 360.

[17]   AB 362.

[18]   AB 373.

[19]   AB 379.