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Counsel for the purchaser argued that this was a town planning matter and is not a requisition on title. However, as I have said, that is not a determining matter. I consider it a proper question in relevant circumstances. Section 16 of the Mines Subsidence Compensation Act 1961 provides that in circumstances where improvements have been erected on proclaimed land subsequent to proclamation without approval of the Mines Subsidence Compensation Board, then the purchaser under a contract for sale of the subject land is entitled to rescind that contract. This I consider makes the question, if appropriate, a genuine requisition on title. There was a somewhat similar right under earlier Acts.
24 Mr Henke gave evidence of his interest in coal mining through living at Balmain. However, it was not put to him that any suggestion that he considered that there was any possibility of number 38 Murdoch Street, Cremorne, being in an area proclaimed under the relevant Act was fanciful, but rather that his objections to the replies were just an endeavour to buy time. Mr Henke insisted he was entitled to proper answers even in light of the s149 certificate annexed to the contract, which it seems he did not read, and the certificate he obtained himself. Mr Straton, the vendors' solicitor, gave no evidence. Mrs French did not appear to have any understanding of why the answers originally given might be considered insufficient. There is no evidence as to the location of land in New South Wales subject to a relevant proclamation.
25 In summary I consider requisition 20 to be a proper demand, at least in relevant circumstances. That does not necessarily mean failure to respond properly could be relied upon as it has been.
Contract provisions
What bearing does Clause 10 have on this question?
26 I have set out the relevant part of the Clause as amended by the Special Conditions. Clause 10.1.9 appears to be directed towards matters properly the subject of requisition in the absence of disclosure. In other words, if there is a breach of a restrictive covenant, and the covenant is disclosed, no requisition is permissible. The same position would apply in respect of an encroachment disclosed by survey included in the contract document. Is then a requisition impermissible when directed to a matter the "non-existence" of which is shown on the Section 149 certificate? I do not think so. In relation to requisition 20 a proclamation can exist - it is a thing. A non-proclamation cannot exist - it is not a thing. It is a question of construction, but the ordinary meaning of the words, and the context in which they are used, is against the argument of the vendors. Insofar as the vendors relied upon Clause 10 in relation to requisition 17A(d) that argument would fail for the same reason, although in addition the matters referred to in the Section 149 certificate are not precisely the same as those referred to in the requisition and the requisition refers to restrictions, it does not refer to policies. I conclude that clause 10 does not assist the defendants.
Could the purchaser rely on failure to answer the three requisitions to state the vendors were in breach of contract or in default on 12 December 2003 or the date on which the notice to complete was served?
27 Subject to what comes later, the failure to give a proper answer to requisition 17A(c) and 20 before 12 December 2003, meant that the vendors were not entitled to expect completion on the completion date provided for by the contract. In fact the vendors were in breach by failing to give any reply prior to 8 December 2003 as such a time was not reasonable. Had a proper reply been given prior to the date for completion in the contract, even if only a few days - but not minutes, - it might be that even taking into account the default in failing to respond at all within a reasonable time, the default could have been overlooked. The purchaser, did however, rely upon the decision in McIntyre v Marshall [2004] NSWSC 412 on the proper construction of Clause 5 of the contract, particularly 5.2. In that case Gzell J held that as answers to requisitions were "served" by the vendor this gave the purchaser a further 21 days in which to make further requisitions. This would mean that the original requisitions must be served with 21 days of the contract; the vendor would have to respond within a reasonable time, perhaps 21 days, and at least prior to settlement; and the purchaser would have a further 21 days to make further requisitions, the vendor having a reasonable time to reply. As the general time for completion of contracts in this State is about six or seven weeks this time frame in no way fits in with ordinary practice. With respect to the decision of Gzell J, I find myself unable to agree that the time limits he sets out are of general application. Nor do I consider his decision was intended to have so wide an application. The facts in McIntyre were such that the reply to a particular requisition gave cause for a further demand. It is not suggested the amended responses did so. If a reply to proper requisitions gives rise to some genuine requirement for a further requisition, then clearly a purchaser would need time to consider the original response and to frame the appropriate further demand. For instance in the sale and purchase of land under Old System Title an acknowledgement under s83 of the Wills Probate and Administration Act 1898 put forward as the commencement of title would not be a good root of title. If in a response to a requisition to show a good starting point, the vendor abstracted the will in question once again this would not be sufficient and would properly give rise to a further requisition to prove the death and grant of probate. But to suggest that 21 days' time is required to consider replies to requisitions in respect of Torrens Title land is needlessly restrictive and I do not consider it a proper approach to Clause 5.2. This is because nothing usually arises out of standard requisitions and the normal somewhat uninformative replies, which is quite unlike the position which occurs with requestions arising from an abstract of Old System title. However, as I have said the purchaser was entitled to a proper reply to requisitions 17A(c) and 20 at least if relevant to the property. Nothing really arose out of the replies served; they were just not a proper response. The vendors were in default through failing to give proper responses to requisitions. That precluded them from serving a valid notice to complete when they purported to do so. No argument was addressed to special condition 10 of the contract.