The quotation came from a decision of the Full Victorian Supreme Court in Charles Lodge Pty Ltd v Menahem [1966] VR 161, 165-6.
27 I followed that passage in Vakele Pty Ltd v Assender (1989) 4 BPR 9591, 9596, where again the authorities are reviewed.
28 In Meehan v Jones (1982) 149 CLR 571, 592, Mason J said that a clause which gave each party a right to terminate if an event wholly within the control of the purchaser had not occurred, was not exclusively for the benefit of the purchaser.
29 The High Court considered the matter again in Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153. This was a Queensland appeal. The contract in question was also one explicitly giving the purchaser a right to rescind without mentioning that the vendor had a similar right. The headnote rightly says that the Justices came to the view that in that contract the condition was solely for the benefit of the purchaser. However, there is some discussion on p 161 in the judgment of Gibb CJ which suggests there may be circumstances where a condition is still for the benefit of the purchaser even though its fulfilment or non-fulfilment did affect the vendor.
30 The matter was considered by the South Australian Full Court in Willing v Baker (1992) 58 SASR 357. None of the three judgments have any reference to any of the NSW decisions on the topic. Legoe J gave the leading judgment. He discussed when a party may waive a condition and reached the conclusion that (with respect correctly) it all depended on the construction of the contract in question. However, his Honour seems to have been primarily guided by the 5th Australian edition of Cheshire and Fifoot's Law of Contract, a passage that now appears as the first paragraph of [20.10] of the 7th Australian edition (Butterworths, Sydney, 1997). Unfortunately, the learned editors of Cheshire and Fifoot, not having considered the NSW decisions, make the statement: "The rule cannot, however, be said to have a very precise form." That statement probably led Legoe J into thinking that such a clause may be waived by a purchaser notwithstanding that the vendor would receive some benefits under it. That does not appear to be the law in New South Wales; see eg Butt, The Standard Contract of Sale of Land in NSW 2nd ed (LBC, Sydney, 1998) [28.27].
31 Counsel referred to the decision of the Queensland Court of Appeal in Measey v Evans [1996] QCA 108. In that case, the contract provided that the relevant special condition was solely for the benefit of the purchaser. Pincus JA and Helman J held, despite some misgivings as to the construction of the whole document, that that provision should be given effect to so that only the purchasers were entitled to waive the condition.
32 Mr Hale SC for the defendant, submitted that whether or not a provision is for the benefit of the vendor as well as the purchaser is to be determined in the circumstances existing at the time of the notice of waiver. I do not consider that this submission is correct. Mr Hale SC relies on a passage in Turnstila Pty Ltd v North Shore Gas Co Ltd (1981) 2 BPR 9105, 9106. However, I consider that that passage which notes the right to waive is a result of an implied term, in fact points to one having to consider the matter as at the date of contract.
33 Mr Hale SC then puts that special condition 4 does not specify the development in respect of which the development consent was to be sought. It left it up to the plaintiff to select the form of development. The plaintiff could well have merely submitted a trivial development application such as for a fence in order to bring forward the time for completion.
34 He adds:
"In those circumstances the vendor's right of rescission seven and a half months later would be of no benefit since the purchaser could, for the sake of form, obtain within a short period of time a development consent of the type just described."
35 There is a lot of force in these submissions which have not really been answered by Mr Ireland QC.
36 However, the answer to the submissions is that both parties made their contract on the basis that some sort of development application would be made. They probably considered that such an application would be more than merely a trivial development such as the erection of a fence. Accordingly I doubt whether Mr Hale's scenario has validity. Should either party have changed its or her mind, it would need the other's consent to advance the settlement date or to consent to a provision of the contract being waived.
37 In my view the approach taken in the Toga case and other NSW cases should be followed. The vendor has some interest as to whether the special condition is fulfilled. Apart from certainty, any development consent in relation to industrial land would probably be of some benefit to the vendor and furthermore, the purchaser has expressly contracted in special condition 10 to bring that about. In my view the clause is not solely for the benefit of the purchaser, and the purchaser alone cannot waive it.
38 (2) The next question is whether the vendor, by her conduct, has waived her rights to object to the purchaser's unilateral election to treat the contract as unconditional.
39 Mr Ireland QC for the plaintiff, said that there was need to take care to examine what it is that it is alleged to have been waived. Is it the condition or notification of obtaining the consent under special condition 6, or the giving of a written notice under special condition 4? In my view the matter to be waived is better expressed in the way I have set out above, that is, whether there has been waiver of the right to object to the purchaser proclaiming the contract as unconditional.
40 Probably the term "waiver" is inappropriate for the reasons given by Mahoney in Toga (supra) at 9269. More properly the question is whether there is an estoppel against the vendor.
41 However, if waiver is the true subject of the analysis, the enquiry must be as to whether the conduct of the vendor was unequivocal in the true sense of the word, that is, "The conduct must be capable of one construction only, namely that X has chosen to forego its rights": Wilken and Villiers Waiver, Variation and Estoppel (John Wiley & Sons, Chichester, 1998) para [40.08] at p 48. I cannot see that the evidence which consists of the correspondence I have abstracted earlier is strong enough to reach this conclusion.
42 Looking at the question as one of estoppel, Mr Hale SC submits that the plaintiff is now estopped from asserting that, for the purposes of clause 29.7.3 the defendant also had the benefit of special condition 4 and that therefore the plaintiff's purported waiver of that provision was ineffective. He says that the defendant relies upon estoppel by representation and estoppel by convention.
43 He accordingly says that clause 29.7.3 operates so that completion is 21 days after 17 May being the date on which "every party who has the benefit of the provision serving notice waiving the provision". Twenty-one days after 17 May is 7 June.
44 He develops the submission by putting that the purchaser's letter of 17 May represented that it had waived the condition concerning development consent and that the contract was now unconditional.
45 The vendor then answered requisitions, procured a deed of assignment from the State Rail Authority and confirmed that the transfer had been signed. She did all this well knowing that no development application had been made.
46 The vendor then made the assumption that the date for completion was 21 days after 17 May on the purchaser's representation or conduct and acted to her detriment in serving the notice to complete when she did.
47 Alternatively, the plaintiff is estopped from denying that special condition 4 had been waived.
48 The submission the concludes:
"For the plaintiff to now depart from the assumption upon which the defendant conducted herself would be unjust and unconscionable and it is therefore estopped from doing so."
49 Reduced to its simplest form, Mr Hale's proposition is that the purchaser's conduct on and after 17 May led the vendor to form a belief to her detriment that special condition 4 had been removed from the contract.
50 Evidence to support this proposition is fairly weak. There is nowhere in the evidence a statement by the vendor or any witness called on her behalf that she ever relied on the purchaser's conduct of 17 May or otherwise.
51 Again the letter of 17 May merely said that the purchaser was prepared to complete the contract without the consent. It did not explicitly waive the condition.
52 Furthermore, the correspondence which I have already extracted earlier in these reasons contains not a word about any such representation or reliance. Indeed, on 29 May the vendor was still saying that the purchaser had not lodged a development application.
53 It would seem from the correspondence that the parties were more concerned with possible problems with the boat and the deed of assignment from the State Rail Authority.
54 Thus, I cannot see how this material can amount to a representation by statement or by silence upon which the purchaser might rely, nor is there sufficient evidence that the purchaser did in fact rely in on it.
55 Accordingly, in my view, there was no waiver or estoppel.
56 (3) As I have said, the box for completion date on page 1 merely referred to special condition 6. Special condition 6 could not come into play because no development consent was ever obtained. What then, was the completion date?
57 One has to go to printed condition 29. This was added for the first time in the 2000 edition of the contract, and there is little exegesis of it, though see CCH's Conveyancing Service Vol 1 [7-082].
58 29.1 provides that clause 29 is only to apply "… if a provision says this contract or completion is conditional on an event". "A provision says" would seem to indicate that one must look for some express term. There is none in this contract. However, it seems to me, and the contrary was not really argued, that special condition 4 comes within the definition.
59 On this basis, as the parties could lawfully complete without the consent, clause 29.7 comes into play. However, clause 29.7.1 is inconsistent with special condition 4, and the latter, being a typed clause, would prevail over a printed clause unless the context showed that some other construction should be applied. The context does not so require. Thus one goes to 29.7.3, there is no completion date, therefore completion is to take place 21 days after the end of the time for the event to happen which was 5 July 2002.
60 Thus the completion date is 26 July 2002.
61 (4) It is said that the notice to complete is invalid as to form and insufficient as to time.
62 As to the former, it must be remarked that the notice is a very peculiar one. There are basically two types of notices to complete: (a) notices putting an essential time on an intermediate step before a contract is completed; and (b) notices making time of the essence for final completion of the contract. The present notice in its recitals seems to suggest it is of type (a), but the requirements are of type (b).
63 As can be seen from the correspondence, there was some debate between the solicitor as to whether the vendor was in a position to give a notice to complete. Most of those have now evaporated and I will deal with those matters under head (7).
64 The reasons for complaining with the notice to complete's form are: