Crowe v Rindock Pty Ltd

Butt Standard Contract for Sale of Land in NSW 2nd Edition [545] Festa Holdings Pty Limited v Adderton [2004] NSWCA 288 Godfrey Constructions Pty Ltd v Kanangra Park Pty Limited (1972) 128 CLR 529 Green v Seven (1879) 13 ChD 589 In Re Solomon & Davey (1879) 10 ChD 366 CASES CITED : McIntryre v Marshall [2004] NSWSC 412 Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286 P W Watts The Law Relating to Requisition 5 ALJ 10 and 50 Re Ford & Hill (1879) 10 ChD 365 Stonham The Law of Vendor & Purchaser 1966 [1011] Winchcombe Carson Trustee Company v Ball-Rand Pty Ltd [1974] 1 NSWLR 477

Debra Pauline Crowe (Plaintiff) PARTIES : Rindock Pty Limited (First Defendant) Karin Schultz (Second Defendant)

Mr D H Murr SC with him Mr I E Davidson (Plaintiff) COUNSEL : Mr D A Smallbone (Defendants)

Paul L Henke & Co (Plaintiff) SOLICITORS : Straton Gates (Defendants)

• 14 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2512/04 DEBRA PAULINE CROWE V RINDOCK PTY LIMITED & ANOR JUDGMENT Issue 1 This is a vendor and purchaser case. The question for decision is whether the defendant vendors' purported termination of the contract for failure by the plaintiff purchaser to comply with a notice to complete was effective, or whether the purported termination was wrongful and amounted to a repudiation by the vendors which was accepted by the purchaser, bringing the contract to an end. 2 If the vendors' termination was effective then the vendors are entitled to damages in an agreed amount which gives credit for the deposit paid; if the purchaser is correct then she is entitled to return of the deposit plus interest. Facts 3 By contract of sale dated 19 September 2003, the defendants agreed to sell and the plaintiff, Mrs Crowe, agreed to buy property 38 Murdoch Street, Cremorne for $1,530,000. The contract provided for a deposit of $76,500 and for completion 84 days after the contract date, namely 12 December 2003. 4 Mrs Crowe was separated from her husband, but they remained on good terms. Mrs Crowe was the owner of property 63 Nelson Street, Rozelle. One reason for wanting to purchase the Cremorne property was that she and Mr Crowe could both live there, but live separately one from the other, yet both be available for their children. Although the new home was to be purchased in Mrs Crowe's name alone, Mr Crowe was prepared to guarantee a mortgage loan which would have to be obtained by her, or I think, to become a principal debtor. 5 The Rozelle property had not been sold on 19 September 2003. It was necessary for it to be sold and the proceeds of sale available for there to be sufficient money available for the purchase of the Cremorne home. It is admitted that as at 12 December 2003, the plaintiff was not in a position to pay for the Cremorne property. It is admitted that this remained the position at the date of the vendors' purported termination, namely 19 January 2004. 6 The contract was in the form of the 2000 Edition of the Contract for Sale of Land. Clause 1 defined "requisition" as "an objection, question or requisition (but the term does not include a claim)". Clause 5 provided: 5. Requisitions If the purchaser is or becomes entitled to make a requisition , the purchaser can make it only by serving it - 5.1 if it arises out of this contract or it is a general question about the property or title - within 21 days after the contract date; 5.2 if it arises out of anything served by the vendor - within 21 days after the later of the contract date and that service ; and 5.3 in any other case - within a reasonable time.

The printed Clause 10 was amended by special conditions. So far as is relevant the clause with the amendment reads: 10. Restrictions on rights of purchaser 10.1 The purchaser cannot make a claim or requisition or rescind or terminate in respect of: … 10.1.9 anything the existence of which is noted in this contract (except a caveat, charge, mortgage or writ) … 10.3 For the purposes of this clause 10 the Vendor discloses all of the information appearing in the copy documents attached to this Contract even if the Contract does not refer to that disclosure.

Before the printed form of 10.1.9 was amended it read "anything the substance of which is disclosed in this contract (except a caveat, charge, mortgage or writ)." As is not at all unusual the attempted amendments were drawn without proper thought so that 10.3 would be appropriate to 10.1.9 in its unamended form where the word "substance" appeared rather than "existence". 7 The contract further provided:

(b) 21.1 If the time for something to be done or to happen is not stated in these provisions, it is a reasonable time.

(c) 21.6 Normally , the time by which something must be done is fixed, but not essential.

"Normally" is defined to mean "subject to any other provision of the contract".

Special Condition 8 of the contract was as follows:

NOTICE TO COMPLETE AND INTEREST FOR LATE COMPLETION 8. The Purchaser and the Vendor agree that completion of this matter shall be effected on or before the Completion date failing which either party, if not responsible for completion not having taken place, shall be entitled to serve upon the other party a Notice to Complete and it is specially agreed that a period of 14 days (or any period greater than 14 days) shall be deemed to be a reasonable period for any Notice to Complete served pursuant to this Contract without prejudice to the right of such party to issue any further Notice to Complete. Should the Vendor become entitled to and serve a Notice to Complete hereunder the Purchaser will pay to the Vendor on settlement the sum of $300.00 by way of agreed costs which the parties acknowledge is a reasonable figure to cover the expenses of serving each or any such Notice. 8 A certificate under s149 of the Environmental Planning and Assessment Act 1979 was attached to the contract. It is dated 22 July 2003. Mr Henke, solicitor for the plaintiff purchaser, obtained his own certificate which is dated 7 October 2003. The information on each apart from two words is identical. Under the heading "Other Controls" among other statements the following statements appear: The subject land is NOT proclaimed as a Mine Subsidence District within the meaning of Section 15 of the Mine Subsidence Compensation Act 1961. The land is NOT AFFECTED by a policy, adopted by the Council or adopted by any other public authority and notified to the Council for the express purpose of its adoption by that authority being referred to in planning certificates issued by the Council, that restricts the development of the land by reason of the likelihood of landslip, bushfire, flooding, tidal inundation, subsidence, acid sulphate soils or any other risk except contamination.

This information is part of the information under s149(2) of the Environmental Planning and Assessment Act prescribed by Regulation 279 of the Environmental Planning and Assessment Regulation 2000 and Schedule 4 to that regulation.

The words "except contamination" did not appear on the Henke certificate. 9 The solicitor for the plaintiff was Mr Henke. The solicitors for the defendant were Messrs Straton Gates. Mr Straton was the solicitor responsible but a lot of the work was done by Mrs French, a clerk in that firm, who was experienced in conveyancing work. 10 On 30 September 2003, Mr Henke sent requisitions on title to the vendors' solicitors. These were in a printed form which has been in circulation for many years, although amended from time to time. The requisitions included the following: 12. (a) Evidence must be furnished that all covenants, agreements, etc (if any) mentioned in the Contract and shown or noted on the title have been complied with; and any not in accordance with the Contract must be removed before completion. 17A (c) Is there any currently applicable development approval or consent to the use of the premises? (d) Are there any restrictions on the use of, or development of, the subject land by reason of the likelihood of landslip, bush fire, flooding, tidal inundation, noise exposure, subsidence or any other risk? 20. Has the subject land been proclaimed to be a mine subsidence district within the meaning of the Mine Subsidence Compensation Act, 1961? 11 Straton Gates replied to the requisitions by letter dated 5 December 2003, which was received by Mr Henke, on 8 December. This was 2 months and 8 days after the requisitions were sent. In response to each of the four requisitions or demands listed above the answer was "The Purchaser must rely on his own inquiries". This was of little assistance with four days to go until settlement. It is fair to say that had the reply to 12(a) been "there are none" and the replies to the others "not to the vendors' knowledge" this litigation would probably not have commenced. It is generally accepted that a reply in the form of reply given is an insufficient response to a proper requisition, whereas the response "not so far as the vendor is aware, but the purchaser should make his own inquiries" is proper. See In Re Solomon & Davey (1879) 10 ChD 366; Stonham The Law of Vendor and Purchaser (1966) [1011]; Butt: Standard Contract for Sale of Land in NSW 2nd Edition [545]. 12 There is some conflict in the evidence about the next event. However, it is accepted that on 8 December, Mrs French spoke to Mr Henke asking about settlement. During that conversation Mr Henke referred to the requisitions, complaining that the answers given were not proper answers. Mrs French asked for a letter or fax so that she could discuss this with Mr Straton. Mr Henke agreed, I think reluctantly, to send such a fax. He said that later in the conversation there was an off the record discussion about the problems with Mrs Crowe raising the money and her inability to complete without sale of Rozelle. Mrs French said that the whole of the conversation was off the record and that the comment about the replies to requisitions was made in the course of this. Neither witness was a hundred percent reliable. Mrs French had a file note which looks to be a genuine note taken during the conversation. In the long run it is really irrelevant as to whether the remarks and complaints about the answers to requisitions were in a part of the conversation separate from that which was off the record. Mr Henke agreed to send a fax setting out his concerns. He did not do so. He said that he did not regard this as urgent and he did not treat it as urgent. I find this a little difficult to accept as completion was due in four days' time, but perhaps it was not really urgent as his client had no way of completing anyway or perhaps he considered the vendors in breach for failing to respond within a reasonable time. 13 Mrs French, discussed the requisition problem with Mr Straton; the decision was made to wait for the fax. Nevertheless, after further discussion he did instruct her to send amended replies to two of the requisitions as follows: 12(a) There are no such covenants. 17A(c) Not to the vendors' knowledge however the purchaser should make own inquiries.

The letter finished "All other answers remain as in our letter dated 5 December 2003". This fax was dated 16 December 2003. 14 Some few minutes after sending this fax with the additional responses to those two requisitions the vendors' solicitors sent another fax enclosing a notice to complete by 15 January 2004. It is not suggested the time was too short if all else was in order. It was in fact a longer time than was provided for by the contract. 15 On 12 January 2004, Mrs French wrote inquiring about settlement and warning of the vendors' intention to terminate if settlement did not take place as required. On 14 January 2004, Mr Henke sent a fax to the vendors' solicitors, which included the following paragraph: We submit that the notice to complete is not valid as it was issued prematurely as our request for amended answers to certain requisitions on title was not satisfied until the moment that the notice to complete was served on us.

Mr Murr, Senior Counsel for the plaintiff conceded during opening that this objection was motivated by the fact the plaintiff could not sell her house and needed money from that sale to complete. 16 Completion did not take place and on 19 January 2004, the vendors' solicitors gave notice of termination. 17 On 20 January 2004, Mr Henke wrote reiterating his contention that the notice to complete was issued prematurely and was invalid, stating the purported termination was a repudiation which his client accepted. He sought return of the deposit. 18 It was accepted by the plaintiff's counsel that as at 12 December 2003 and at the time of the purported termination and the time of acceptance of the claimed repudiation the plaintiff was unable to pay the balance purchase price. Questions 19 The case raises a number of questions for decision.

(a) Were the four relevant requisitions allowed under the contract and general law;

(b) Were the two outstanding requisitions allowed under the contract and general law;

(c) Was the vendor entitled to serve a notice to complete shortly after furnishing the answers to 12(a) and 17A(c);

(d) Did the purchaser waive the right to an answer to 17A(d) and 20;

(e) Did the contract preclude the right to make requisitions 17A(d) and 20. 20 The case made one thing clear. That is that although vendor and purchaser matters have for years been determined on first originating summons and since 1972 on summons, the procedure is quite unsatisfactory in cases such as this which clearly required the issues to be defined by pleadings. Preliminary contentions are quite inadequate. This is not necessarily the fault of the parties as the court could have required pleadings. It is just a general observation. By the time the matter came on for hearing it was necessary to deal with it as it stood. Requisitions 21 No reliance was placed on failure to reply to requisition number 12 prior to the date fixed for settlement. It was not relevant to the transaction and the question should not have been asked and therefore need not have been answered. Mr Murr said that he did not suggest any of the remaining three were a requisition on title or a requisition on conveyance in the strict sense of those expressions but rather that they were questions within the definition of requisition. So far as 20 is concerned I am not certain this is correct. 22 Any question is not a valid requisition because it is a question. The common law determines whether it is or not. See Festa Holdings Pty Limited v Adderton [2004] NSWCA 228 per Mason P at paragraph 7. Some considerable time was spent discussing the law on requisitions and appropriate questions with special reference to Godfrey Constructions Pty Ltd v Kanangra Park Pty Limited (1972) 128 CLR 529 at 536; Stonham paragraphs 1005 to 1010 and the article by P W Watts The Law Relating to Requisition 5 ALJ 10 and 50. These writings have been discussed in many cases and I do not propose to do so again, except to say that insofar as reliance is placed upon the statement in Stonham that general inquiries are properly made, inter alia, towards "matters affecting (i) the nature, (ii) the quality, (iii) use, or (iv) value of the property", I consider that to be far too wide and not justified by authority. For instance "quality" could go to the standard of improvements and "nature of the property" would generally be obvious on inspection. 23 I turn to the specific requisitions:

17A(c) The contract describes the property sold as "the land, the improvements, all fixtures and the inclusions but not the exclusions". The land is described by address, plan, title reference and title form. The improvements are said to be "house and garage". As the use of a house is authorised under the zoning disclosed in the Section 149 certificate, the question is not one, in my opinion, which goes to title. It would be different if there were some doubt about this or if for instance the property were sold on the basis of a development consent, the benefit of which might flow to a purchaser. It is nevertheless a proper question going to permissible use which the vendor was bound to answer. Thus an answer in the form given originally was not sufficient.

17A(d) It is generally accepted that town planning matters do not go to title. But that is because they are general affectations over areas of land usually not specifically related to particular properties. In any event it does not necessarily mean that it is not a proper inquiry or question, because requisitions are not limited to requisitions on title. What makes this demand impermissible in my view is its breadth. In the words of Re Ford & Hill (1879) 10 ChD 365, it is "a wide and searching interrogatory". The words "or any other risk" could include earthquake, or restrictions on the height of structures to prevent damage by aircraft or restrictions due to proximity to a security installation and any risk which might be thought of in the nature of an act of God. It might be a proper requisition to inquire whether the vendor is aware of any limitations on the use of the land imposed by any competent authority by reason of specified risks. But to ask such a searching unlimited question requiring the vendor to search his or her mind as to what other risk there might be and to decide whether the specified and unspecified risks give rise to restrictions on use not necessarily imposed by competent authority is, I consider, impermissible. I should add that the question, so far as it relates to bush fire, flooding or tidal inundation is quite inappropriate for the property the subject of the contract.

20.   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.

Did the purchaser waive the requirement for proper answers or is the purchaser estopped from claiming the answers were not sufficient? 28 The vendors argue that any right to further reply was waived. This argument seems to be based upon the facts first that Mr Henke did not send the fax he said he would, and second that after some discussion between the solicitors on 22 December 2003 about the validity of the notice to complete served more or less contemporaneously with the additional responses to the requisitions, nothing further happened until 12 January 2004, when the vendors' solicitor sent a reminder letter to the purchaser's solicitor of settlement being due on 15 January and noted that in default of settlement taking place on that day, the vendors proposed to terminate the contract. On 14 January 2004, Mr Henke complained about the late additional replies to requisitions making no further complaint about failure to reply further to 17A(d) or 20. These matters in themselves could not amount to waiver and no cross-examination of Mr Henke was directed to it. In any event they do not go to the validity of the notice to complete. Nor, as a result of this conduct, could the purchaser be estopped from relying on failure to reply to the remaining requisitions the subject of complaint. There is no evidence that the vendors relied upon any failure to insist upon full reply or upon the letter in question so as to refrain from doing anything at all. In other words there is no evidence that the vendors or their solicitors relied upon any conduct of the purchaser or her solicitor in determining to give no other amended answers. 29 If the vendors had not made proper replies to requisitions at the time fixed for settlement, namely 12 December 2003, they were in default and could not give notice to complete and the purchaser was not in default for failing to complete on that day: Winchcombe Carson Trustee Company v Ball-Rand Pty Ltd [1974] 1 NSWLR 477. If the vendors had not made proper replies to requisitions by some reasonable time - not three minutes - before the time when the notice to complete was served, and such requisitions went to matters of substance, then the vendors remained in default at that date and were not in a position to give a notice to complete. Neither could it then be said the purchaser was in breach or guilty of unreasonable delay which is of course a necessary requirement for a valid notice to complete: Green v Sevin (1879) 13 ChD 589 at 599. If that remained the position, then the purported termination in reliance upon failure to comply with the notice amounted to a repudiation by the vendors as it showed that the vendors no longer considered themselves bound by the contract. The question then is whether the purchaser was able to accept that repudiation, thereby bringing the contract to an end. As an essential time for completion had not been validly fixed there was no breach by the purchaser triggering a right to terminate. As a matter of principle then the purchaser was entitled to accept the repudiation bringing the contract to an end. This is what the purchaser purported to do. Unless there is some other reason to deny relief to the purchaser/plaintiff, she should succeed. I should add that I do not consider default goes only to readiness, willingness and ability to complete. But relevant antecedent delay must bear upon whether or not the other party has been guilty of unreasonable delay. Not all antecedent delay is relevant: Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286 does not say that it is. It cannot be relied upon forever to determine the time when a valid notice can be served or to argue that no notice can ever be served. Repudiation by the purchaser 30 There was an argument by counsel for the vendors that the purchaser had indicated, through her solicitor, on 8 December 2003 and shortly prior to 16 January 2004 that she could not complete as she did not have the funds. While there is no doubt about what was said I consider the position to be that Mrs Crowe still hoped to sell her house and if she did so, hoped to obtain additional time in which to complete. I do not consider the admissions as to unavailability of funds amounted to repudiation or anticipatory breach. In any event it was not accepted by the vendors. The termination by the vendors was for failure to comply with the notice to complete. Final matters 31 Neither side comes well out of this. Solicitors for purchasers should make requisitions appropriate to the property the subject of the contract; solicitors for vendors should give proper answers to requisitions and should not have their staff insist upon receiving unnecessary faxes when they could work through the problem by talking to the opposing solicitor themselves. They should in any event give proper replies. As I have said, just why Mr Straton decided to respond to requisition 17A(c) and not (d) or 20, remains a complete mystery, as he did not give evidence. 32 Counsel in their careful arguments referred me to many decisions on requisitions, but none determining the question here, namely whether a purchaser admittedly without funds to complete, can rely on an inadequate reply to a requisition, to buy more time in the hope that funds will eventuate from some source. Mr Henke could have been pressed further in cross-examination than he was; for instance he was not asked whether the reason he did not pursue a further response to requisition 20 was that he accepted it as irrelevant to the subject property. 33 Mr Murr, SC said at the outset that the purchaser stood upon her entitlement to rely on her strict rights under the law. That is what parties in difficulty in conveyancing matters invariably do when served with a notice to complete. The courts have not held that they cannot do so. The uninformed view that conveyancing work is easy work of a routine nature is quite incorrect as this case shows. 34 I summarize this rather long judgment as follows:-

a. Requisitions 17A(c) and 20 were proper requisitions to which the vendors were required to give a proper answer. They did not do so before the date fixed for completion.

b. This meant that the purchaser was not in default for failing to complete on the date for completion in the contract.

c. The answer given to 17A(c) on 16 December was adequate. But as the date fixed had passed it was necessary to allow a reasonable time after the reply was made before it could be said the purchaser was in default, so as to justify a notice to complete. That time had not passed.

d. The purported termination consequent upon the expiry of the notice to complete amounted to a repudiation the purchaser was able to accept and which she did accept, bringing the contract to an end and entitling her to a refund of deposit.

e. It is not necessary to make a final determination about requisition 20. It was a proper question and the response inadequate and late. While I would have thought there was no genuine concern about mines subsidence in Cremorne, the fact the information is shown on the s149 certificate for a Cremorne property goes some way to counter this.

f. If the final time for completion had not been validly fixed, the fact the purchaser did not have the funds at the date originally fixed or when the time claimed to be fixed by notice expired is not fatal to her claim. She may have somehow got the funds by an appropriate date; she may have extracted further time from the vendor.

g. The plaintiff is entitled to return of the deposit. The parties should agree on the interest. 35 Proposed orders

1. Declaration as sought in paragraphs 1 and 2 of the summons.

2. Order the defendants pay the plaintiff $76,500 plus interest of $__________.

4. Order the defendants/cross-claimants pay the plaintiff's costs of the proceedings.

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