...
(2) The certifying authority must notify the consent authority and the council of the determination by forwarding the following documents to the council within 2 days after the date of the determination:
(a) a copy of the determination,
(b) copies of any documents that were lodged with the application for the certificate,
(c) if an occupation certificate was issued, a copy of the certificate,
(d) a copy of the record required to be made of each of the following:
(i) all critical stage inspections and any other inspections carried out because they were required by the principal certifying authority under section 109E (3) (d) of the Act,
(ii) any inspection carried out under clause 162A (4A) (a),
(iii) any missed inspection to which clause 162C applies,
(e) a copy of any compliance certificate and of any other documentary evidence, whether or not of a kind referred to in Part A2, clause A2.2, of the Building Code of Australia, relied on in issuing the occupation certificate. "
51 As earlier noted in these reasons there is no challenge to the validity of the interim occupation certificate issued in this case.
52 Regulation 155(2) requires an occupation certificate to be accompanied by a fire safety certificate and fire safety schedule for the building. It does not provide that the fire safety certificate and fire safety schedule are part of the occupation certificate.
53 The interim occupation certificate served under cover of Church & Grace's letter of 27 April 2007 specified that there were attachments, namely the interim fire safety certificate and other certificates outlined in a table. The table containing the list of those certificates was included in the form of the certificate served on the purchasers. The fact that the certificate referred to and described the attachments did not make the attachments part of the certificate within the meaning of the Environmental Planning and Assessment Act. It was the certificate in the form in which it was served on the purchasers which authorised the occupation and use of the building.
54 Counsel for the purchasers argued that reg 155(2) required that the fire safety certificate and fire safety schedule accompany the certificate served on the purchasers. Counsel submitted that a purposive construction should be given to reg 155 so that those persons who need to rely upon an occupation certificate, and who are to move into and occupy a new building, should receive the required accompanying documents, if the certificate served on them is to be valid. Even if this construction of reg 155(2) were correct, it would not follow that the required accompanying documents formed part of the occupation certificate to be served in accordance with Special Condition 7, or the prescribed term under cl 2 of Schedule 2 to the Conveyancing (Sale of Land) Regulation. If the submission were correct, the vendor might have been in breach of reg 155(2), but that is a different question.
55 But in my view the submission is misconceived. The regulation prescribing what documents must accompany an occupation certificate is made for the purposes of the Environmental Planning and Assessment Act and Regulation. Nothing in that Act or the Regulation deals with what documents should be served in a conveyancing transaction.
56 I would accept that the occupation certificate to be served pursuant to the prescribed term of the contract must be a valid certificate, that is, it must authorise the use and occupation of the building. It would not be every failure to comply with a requirement of reg 155 which would invalidate a certificate. But even if it be assumed that a certificate issued by the accredited certifier without the accompanying documents required by reg 155(2) was for that reason invalid, it would not follow that the certificate required to be served pursuant to the prescribed term of the contract for sale had to be accompanied by those documents.
57 Neither Special Condition 7 nor the term prescribed by cl 2 of Schedule 2 to the Conveyancing (Sale of Land) Regulation requires the service of documents which might be necessary for a purchaser to conduct an audit of the validity of the certificate. Nor would the validity of the certificate be established by a vendor's serving on the purchaser the certificate with the required accompanying documents. If the accompanying documents were required for the certificate to be valid the question would be whether such documents accompanied the certificate when it was issued, and perhaps when it was provided to the Council. That fact would not be established by the attachment of the documents to the certificate served on the purchaser. In other words, the construction of the prescribed term contended for by the purchasers would not advance any purpose of the conveyancing transaction.
58 The argument advanced for the purchasers was rejected by Hammerschlag J in McQueen v Leduva Pty Ltd [2008] NSWSC 284 at [109]-[112]. Although it is unnecessary for me to decide the point, I am inclined to agree with his Honour's conclusion at [112] that the absence of an attached fire safety certificate would not make an occupation certificate a nullity in any event. Be that as it may, there was no requirement for the vendor to attach the fire safety certificate or fire safety schedule to the occupation certificate served on the purchasers.
59 Further, in the case of Mr Firmstone's contract, the parties agreed on a new date for completion, with time to be of the essence. They did so after service of the certificate. I do not accept the submission for Mr Firmstone that notwithstanding the agreed new date for completion, the vendor was required to serve additional documents. There was no such stipulation. Nor would such a stipulation be implied. To the contrary, the parties acted on the basis that everything had been done for completion to be due. Therefore, if my construction of Special Condition 7 and the prescribed term is wrong, in Mr Firmstone's case, there was in any event a contractual variation requiring completion on 27 July 2007 with time to be of the essence.
60 It is unnecessary to deal with the vendor's further argument that if the purchasers' construction of Special Condition 7 and the prescribed term were correct, the vendor in any event substantially performed its obligation to serve the occupation certificate, and the purchasers accepted that performance as sufficient by not asking for any further documents.
Form of Transfer
61 It is unnecessary to explore whether any consequence would follow if the vendor were in breach of an obligation to inform the purchasers that an administrator had been appointed so that a form of transfer with the correct name for the vendor could be prepared (see para [45] above). The administrator was not appointed until 28 May 2007, that is, after service of the notices to complete. The solicitor for Mr Firmstone prepared the form of transfer and submitted it to the vendor. There was nothing further the vendor was required to do to enable him to prepare the transfer. The other two purchasers breached their obligation to submit a form of transfer within seven days of service of notice of registration of the strata plan. The notices to complete did not require the purchasers to submit a form of transfer. By serving the notices to complete without making that requirement the vendor waived performance of the purchasers' obligation to prepare the transfers (Fekala Pty Ltd v Castle Constructions Pty Ltd [2002] NSWCA 297; (2003) NSW ConvR 56-042 at [34]).
Vendor's Readiness, Willingness and Ability to Complete
62 The vendor was not entitled to terminate the contracts unless it was ready, willing and able to complete. To be able to complete the vendor needed to be in a position to tender a duly executed transfer, to procure the mortgagee to produce the certificate of title, and to provide duly executed discharges of all mortgages. It was not in a position to do so. Hence counsel for the purchasers argued that the vendor was not ready, willing and able to complete. Because the purchasers' obligation to complete was concurrent and dependent upon the vendor's doing so, it was argued that the purchasers did not breach their contracts and the vendor's purported termination of the contract was a repudiation.
63 But the question is whether the purchasers impliedly intimated that it would be useless for the vendor to tender performance. In Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235, Dixon CJ said (at 246-247):
" ... it was always the law that, if a contracting party prevented the fulfilment by the opposite party to the contract of a condition precedent therein expressed or implied, it was equal to performance thereof. But a plaintiff may be dispensed from performing a condition by the defendant expressly or impliedly intimating that it is useless for him to perform it and requesting him not to do so. If the plaintiff acts upon the intimation it is just as effectual as actual prevention. " (Citation of authority omitted); see also Mahoney v Lindsay (1981) 55 ALJR 118 at 119; Foran v Wight (1989) 168 CLR 385 at 396, 403, 417, 419-420, 427, 433-434, 451, 453-454, 456.)
64 The intimation need not be express. It may be conveyed by conduct. The intimation is most clear in the case of Mr Firmstone's contract. His solicitor told the vendor's solicitor that they would be contacted to arrange a settlement date as soon as the purchaser's solicitor was in a position to do that. But no such contact to arrange a settlement date was made. Instead he asked for more time. The clear inference was that Mr Firmstone was not in a position to settle.
65 There was also such an intimation by the silence of Mr Sarkar and Mr Islam and of the solicitor for Mr and Mrs Amaya. Usual conveyancing procedures and the implied duty of a co-operation to bring about completion of the contract require a purchaser to contact the vendor to make arrangements for settlement. A purchaser should seek out the vendor and tender the purchase money (Wilson v Kingsgate Mining Industries Pty Ltd [1973] 2 NSWLR 713 at 726; Butt, The Standard Contract for Sale of Land in New South Wales, 2nd ed LBC Information Services (1998) at [16.76]; Ireland v Leigh [1981] Qd R 145 at 148).
66 Mr Sarkar and Mr Islam failed to respond not only to the notice to complete, but to Church & Grace's letter of 5 June 2007 which enclosed a transfer and said "We await hearing from you". Mr and Mrs Amaya's solicitor, Mr Herat, had earlier informed the vendor's national sales manager that his clients felt that they could not proceed with the acquisition of the property due to financial problems and health issues. The silence of both purchasers in response to the notices to complete impliedly intimated that the purchasers would not be attending at any settlement. The notice to complete identified the latest time by which completion was required. The purchasers had to contact the vendor's solicitors to make the necessary arrangements. Normal conveyancing practice would require the purchasers to arrange a time for settlement, agree upon adjustments, and ascertain how cheques were to be made out.
67 The present case is similar to Blacktown City Council v Fitzgerald (1990) 6 BPR 13,409 at 13,414-13,415 where a purchaser who failed to complete after time had been made essential disputed the validity of the vendor's termination of the contract on the ground that at the time fixed for completion, the vendor was not in a position to complete. The vendor's solicitor did not attend a nominated office for completion because the solicitor correctly believed that the purchaser was not going to attend and settle on that day. The reason for that belief was not any express statement to that effect, but the absence of any communication from the purchaser. Cohen J said (at 13,414-13,415):
" The solicitors for the [vendors] were entitled to consider not only positive statements of intention but a failure to carry out usual conveyancing procedures in order to gauge if there was an intimation by the [purchaser] that it would not be attending on settlement. The assessment was that in the absence of the usual practices having been carried out the [vendors'] solicitors would not be attending on settlement. That assessment proved to be true. The failure by the [purchaser's] solicitors to give figures in the usual way was in fact as well as in theory an indication that they would not be in attendance. ... In my opinion the failure to carry out usual conveyancing steps was an indication that the [purchaser] would not be represented at the proposed settlement. The [vendors] did not attend that settlement, not because they were unwilling or not ready to complete but because the failure of the [purchaser's] solicitors to carry out usual steps was a clear intimation that they would not be attending.
In my opinion the [vendors] by their solicitors were entitled to accept that intimation and to avoid the additional expense and trouble of travelling to Sydney for a settlement which they rightly anticipated would not take place. They were in my view ready, willing and able to complete on the day in question and, upon breach by the [purchaser] they were entitled to give a notice terminating the contract. "