Greydae Pty Ltd & Anor v Malilane Pty Ltd & Anor [2003] VSCA 27

Court of Appeal (Vic)|2003-04-10|Before: WINNEKE, P., CHARLES and EAMES, JJ.A.

For the reasons stated I would dismiss the appeal.

I have had the advantage of reading the reasons prepared by the President in this matter and, with these added comments, agree that this appeal should be dismissed for the reasons he gives.

I have no doubt that the vendor was entitled, as at 22 December 2000, to give a notice restoring time as an essential term. The trial judge was, I think, perfectly justified in taking into account in his reasons the "sorry history of defaults and broken promises on the part of the purchaser". In my view when the parties agreed to settle at noon on 22 December 2000, it became the purchaser's contractual obligation to settle on that day. When the purchaser failed to do so, the vendor became entitled to give notice fixing a reasonable time for performance.

The arguments made for the purchaser as to the construction of the notice did not persuade me that the purchaser would have been left in any reasonable doubt as to what the notice required. It is to be remembered that two previous notices, in a form which was for practical purposes identical to the notice of 22 December 2000, had apparently caused the purchaser no difficulties in interpretation. I also would agree that the 14-day period fixed was reasonable, for the reasons given by Winneke, P. in par.[39].

I have had the advantage of reading in draft the reasons for judgment of the President, and, for the reasons he has stated, I agree that the appeal should be dismissed.

[1] See Thornton v. Bassett [1975] VicRp 41; [1975] V.R. 407 at 423 ff., per Pape, J.; Neeta (Epping) Pty. Ltd. v. Phillips [1974] HCA 18; (1974) 131 C.L.R. 286 at 299, per Barwick, C.J. and Jacobs, J.; Louinder v. Leis [1982] HCA 28; (1982) 149 C.L.R. 509 at 519 ff. per Mason, J., at 532-3 per Brennan, J.; Poort v. Development Underwriting (Victoria) Pty. Ltd. (No. 2) [1977] VicRp 52; [1977] V.R. 454 at 461-2 (F.C.).

[7] For example, see Poort v. Development Underwriting (Victoria) Pty. Ltd. (No.2), supra at 61-2; Nund v. McWaters [1982] VicRp 60; [1982] V.R. 575 at 583, per Brooking, J.; Mahred Nominees Pty. Ltd. v. Tulloch and Anor. (1991) V.Conv.R. 54-421 at 65,006.

[8] See Tropical Traders Ltd. v. Goonan [1964] HCA 20; (1964) 111 C.L.R. 41 at 53-5; Mehmet v. Benson, supra, at 305 per Barwick, C.J.; Thornton v. Bassett, supra, at 422 per Pape, J.

[10] cf. Webb v. Hughes [1850] EngR 321; (1870) L.R. 10 Eq. 281 at 286 per Sir Richard Malins, V.C.

[11] Thornton v. Bassett, supra, at 423; Neeta (Epping) Pty. Ltd. v. Phillips, supra, at 298-9.

[12] cf. Neeta (Epping) Pty. Ltd. v. Phillips, supra, at 299 per Barwick, C.J. and Jacobs, J.; United Scientific Holdings Ltd. v. Burnley Borough Council [1978] A.C. 904 at 928 per Lord Diplock; Louinder v. Leis, supra, at 524-7 per Mason, J.

[13] Mehmet v. Benson, supra, at 310 per Windeyer, J.

[14] cf. Louinder v. Leis, supra, particularly per Mason, J. at 523-7.

[15] (1983) V.Conv. R.54-003 at 62,109.

[17] Cf. DWJ Holdings Pty. Ltd. v. Carrides (1990) V.Conv.R. 54-361; Chelmaness Pty. Ltd. v. Tridalet Nominees Pty. Ltd. (1991) V.Conv.R. 54-399.

"It is true that the waiver of the right to receive the $21,000 on 1 June 1973, amounted to an election not to rescind the contract for that breach, and that such an election, once made, cannot be retracted : see Tropical Traders Ltd. v. Goonan [1964] HCA 20; (1964) 111 C.L.R. 41 per Kitto, J. at 55. But this is not to say that if the vendor was by law permitted thereafter (by giving an appropriate notice to the purchaser) to fix a reasonable time for payment and thereby to make time again of the essence of the contract and in fact did so, the waiver is to be deemed to extend to the time thereby fixed. Does the law then permit the vendor again to make time of the essence in respect of the payment ... or, to use the words of Barry, J. in Bull v. Gaul [1950] VicLawRp 65; [1950] V.L.R. 377 at 380, to `engraft time by notice'? In my opinion it does."

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