Lacey v Hayden & Anor

Lacey v Hayden & Anor - [2000] NSWCA 182 - NSWCA 2000 case summary — Zoe

[8]

4 Six weeks from 20 September 1989 was 1 November 1989. In circumstances turning on the giving of vacant possession on 8 December 1989, the contract was not completed on that date, or at any time thereafter. I will return to those circumstances later in these reasons. 5 The respondents brought these proceedings on 21 June 1990. They claimed specific performance of the contract, alleging "repeated requests" to the appellant to complete the contract in accordance with its terms and her continued refusal, and damages for the appellant's refusal to perform and delay in performing the contract. 6 A defence and cross-claim was filed by the appellant on 27 August 1990. The substance of the cross-claim was that the true contract between the parties provided for the appellant to remain in occupation of the property free of consideration for two months after the date of completion, that the contract should be rectified accordingly, and that there should be specific performance of the true contract and damages for the respondents' refusal and delay in performing of that contract. 7 In November 1991 the mortgagee of the property advertised it for sale as a mortgagee sale, and the respondents purchased it for $140,000. It became unnecessary for the respondents to have specific performance of the contract, although they could still have had a claim for damages. At a time which does not appear from the evidence the respondents abandoned their claims in the proceedings. 8 There remained, however, the appellant's cross-claim. The appellant could no longer obtain specific performance of the contract which she propounded, and in October 1998 she converted the cross-claim to a claim for damages alone. 9 The cross-claim on which the proceedings went to trial was a further amended cross-claim filed on 21 October 1998. The appellant relied on the contract dated 20 September 1989, and no longer maintained that the true contract provided otherwise than as in special condition 7. She alleged that the express terms of the contract provided for completion on or about 1 November 1989 and payment of the $157,500 on or about that date, and that the respondents had failed to complete the contract "as at the date provided for in the land contract". She also alleged that the respondents had "persistently and continuously" refused to complete the purchase of the property, and had thereby evinced an intention no longer to be bound by the contract and had repudiated it. She claimed a declaration that she had validly terminated the contract on or about 30 November 1989 or alternatively 12 November 1991, or that in the alternative it had been repudiated by the respondents, and damages for the respondents' failure to complete the contract "on the date provided thereby or within a reasonable time". 10 The proceedings came on for hearing before Young J on 27 October 1998. The respondents' defence to the further amended cross-claim was filed in court on that day. The respondents admitted the contract, but as to completion only that it included a term that the completion would take place within six weeks of the date of exchange. They denied that the $157,500 was payable on or about 1 November 1989, and said that the balance of the purchase price was payable on completion. They denied the breach and repudiation alleged, and that the appellant had validly terminated the contract. 11 After going to the facts, Young J said: "The defence admitted the contract. It denied that it was an express term that the cross-defendants would complete on or about 1 November 1989 and denied most other relevant parts of the cross-claim. The pleadings on both sides were a little strange. The claim made by the cross-claimant appeared to be for damages for the loss of the contract, plus consequential damages because of a particular breach of warranty in the first instance, or repudiation in the second instance. The defence really was one that should not just have denied the promise, but should have attacked the non-performance of conditions precedent, for reasons that I will mention in a moment. However, the way in which the case was presented on both sides made it plain what the issues were for my determination. The key question is, was there a breach by the purchasers of the promise to complete on 1 November 1989?"

[11]

Ground 10: The Plaintiffs did not claim the Condition Precedent in their Defence. However, the Judge submitted this Defence for them. However, the Judge did not submit the Condition Precedent for the Defendant. The Plaintiffs were to settle this Contract on 1 November 1989 before the Defendant had to vacate the premises on 8 December 1989. 16 The references to a condition precedent are explained by the use of those words in Young J's reasons. The appellant's complaint was that giving vacant possession by the appellant was not a condition precedent to payment of the $157,500 by the respondents. The respondents were obliged to complete, relevantly to pay the $157,500, on 1 November 1989. The appellant was obliged to give vacant possession on 8 December 1989. The respondents had to complete even if there was a real risk that they would not get vacant possession in accordance with the contract no later than 8 December 1989, because performance of their obligation was not subject to performance yet to come of the appellant's obligation. Therefore the allegation of breach had been made out. 17 Two matters should be mentioned, in order to put them aside. First, it was not suggested on the appeal that there was any significance in the contract providing for vacant possession subject to a right of occupancy under licence. The licence was treated as entitling the appellant to possession of the property. Secondly, in order that the right to occupy the premises under licence arise the appellant had to elect by written notice to the respondents' solicitors prior to completion, but there was no evidence of a written notice prior to 1 November 1989. The respondents sought to rely on this in the appeal, but I do not think they should be permitted to do so. It is clear that they knew prior to 1 November 1989 that the appellant wished and intended to remain in possession of the property until at least 8 December 1989, and at the trial the respondents did not dispute that she had had an entitlement to possession until that date. 18 It was for the appellant to establish that, in the events that happened, the respondents were obliged to complete the contract, relevantly by payment of the $157,500, on 1 November 1989. In a contract for the sale of land the contractual obligations of the parties to complete the sale "are concurrent and conditional in the sense that the vendor is not obliged to convey the land and the purchaser is not obliged to pay the purchase price otherwise than upon concurrent performance by the other party": Foran v Wight (1989) 168 CLR 385 at 433 per Deane J. Young J held that the respondents were not obliged to complete on 1 November 1989 because the appellant was herself in breach of a concurrent obligation "to complete by herself complying with the contract", the non-compliance on her part being that she had made known a risk that she would not give up possession on 8 December 1989. The factual finding was well open to his Honour, but it may be that the legal result did not follow. 19 There is some ambiguity in his Honour's references to the appellant being without blame and herself complying with the contract. On one view, a statement by the appellant as at 1 November 1989 that she would not give up possession on 8 December 1989 would have been an anticipatory breach, of a contractual obligation to be performed on 8 December 1989, for which the respondents might have been able to terminate the contract. But if the respondents did not terminate the contract, and in the present case they did not, it would have remained on foot, to be performed by both parties. The concurrent and conditional obligations to be performed on 1 November 1989 would have remained, and could have been performed, and it would not have mattered that future breach of an obligation to be performed by the appellant on 8 December 1989 was foreseen - she might have changed her mind by that date. On that view, the respondents were obliged to complete on 1 November 1989 even though the appellant had made known a risk that she would not give up possession on 8 December 1989. 20 In the absence of proper adversarial argument, I would prefer not to adopt Young J's path to the legal result. In my opinion, his Honour's conclusion was correct for different reasons. 21 The obligations to complete the sale being concurrent and conditional, if one of the parties to a contract for the sale of land makes known to the other that he will not perform his obligation, the other party does not have to perform the other party's obligation. It is sufficient to refer again to Foran v Wight, where this is put in a number of ways. 22 Mason CJ said (at 396) that a party may be excused or absolved from performance of his concurrent obligation by conduct on the part of the other party amounting to a waiver or dispensation with performance. Brennan J said (at 417) that if one party intimates to the other that it is useless for the other to fulfil his obligation and the other acts on the intimation, the party to whom the intimation is given is dispensed from a nugatory tender of performance. His Honour later (at 427) repeated this in similar language, when referring also to whether the failure of the intimating party to perform the contract can be treated as a breach of contract: that does not arise in the present case. 23 The discussion by Deane J (at 433-4) is less easily summarised, but the principle applied (at 434-5) was that, where the vendors had unequivocally said that they would not complete the contract until after the stipulated date, it necessarily conveyed to the purchasers that it would be pointless for them to trouble to perform their obligation; the purchasers having acted on the faith of the intimation that performance within the stipulated time would be futile and was unnecessary, the vendors would not be allowed to say that they were in breach of contract. 24 Dawson J said (at 451) that the purchasers were entitled to rely upon the intimation by the vendors that they could not settle within the contractual time and the implied intimation that it would be useless for the purchasers to attempt to do so, as absolving them from tendering the purchase price within that time. Gaudron J said (at 456) that when one party to a contract intimates to the other that the latter's performance of a contractual obligation will be futile the latter is not required to tender performance of that obligation; thus following an intimation by one party that a tender of settlement of a contract for sale of land will be futile, the failure of the other party to tender settlement at the time made essential will not put that party in breach of his obligation. 25 Accordingly, if the appellant did not just make known a risk that she would not give up possession on 8 December 1989, but made known that she would not complete the contract on 1 November 1989 unless she did not have to give up possession on 8 December 1989 and could remain in possession of the property for some time thereafter, the respondents did not have to pay the $157,500 on 1 November 1989. The respondents were not obliged to give the appellant longer possession of the property. If there was an "intimation" that it would be pointless for them to complete the contract for their part because, unless they agreed to give the appellant longer possession of the property, the appellant would not complete the contract, and they acted on the intimation, then they were absolved from performance of their obligation to complete by payment of the balance of the purchase price. The respondents submitted, within a notice of contention, that the facts led inevitably to this result. 26 The evidence was sparse, but in my view the respondents' submission should be accepted. 27 As I have said, the deposit was to be invested in a way stated in the contract. Apparently responding to a request that the deposit be released to the appellant, by a letter dated 26 September 1989 the respondents' solicitors wrote to the appellant's solicitors - "We refer to your letter dated 21 September, 1989. We do not understand your point that there may be a trade-off by virtue of our client releasing the deposit to your client, to assist us getting vacant possession by the 8 December as your client only has licence to occupy the premises until 8 December and vacant possession will be required by such date in any event. Notwithstanding the foregoing our client is prepared to release the deposit to your client provided that interest is paid to our client, which would otherwise have been paid had the deposit been held in trust, at a rate of 16%".

[20]

The end result is that we have a problem which we submit requires a practical solution, as any continuing delay will only further delay completion of the construction of the Yurt." 37 The proposal then put forward in the letter was for rent-free accommodation to the appellant for two months after completion and, if the yurt was not then ready, for a licence fee "until vacant possession is given". It was said that, provided settlement took place promptly, it was expected that the yurt would be ready for occupation by the end of January 1990, perhaps earlier, although an earlier date could not be guaranteed. 38 This letter proposed a solution to a problem, and did not itself call for completion or name a date for completion. It can be seen why the appellant had asked for completion earlier than 1 November 1989; it can also be seen why the respondents would in return have sought (in the words of the letter of 14 November 1989) "reasonable assurance" that the appellant would give up possession no later than 8 December 1989. The appellant had been and was conveying that she could not give up possession of the property for (at least) two months after completion. The reasons for that were set out, and the letter further conveyed that she would not complete unless she could be assured that she would have possession of the property for at least the two months. Unless that were so, there was no problem: from the appellant's perspective, the problem was that she did not have that assurance and, without it, would have to give up possession of the property on 8 December 1989. 39 The respondents' solicitors replied by a letter also dated 9 November 1989. They said that they were obtaining instructions, and - "In the interim however, we note that behind the suggestion of some prior agreement quite extraordinary as there were protracted discussions between the writer and your Mr Crompton prior to exchange of Contracts in order to reach a mutually agreed form of Contract and we were clearly instructed by our client to exchange on the basis of the formal Contract that has in fact been entered into and on no other basis."

[25]

42 The appellant submitted that her solicitors then sent to the respondents' solicitors a letter dated 14 November 1989 calling for settlement on or before 17 November 1989. Such a letter was in evidence, but as a letter which the appellant's solicitors advised should be sent but which was not sent. Even in response to the letter of 14 November 1989 from the respondents' solicitors, the appellant did not advise of a date on which she was prepared to settle. 43 The appellant's purchase of the Bucketty land was completed on 17 November 1989, using bank finance. 44 On 30 November 1989 Mr Crompton telephoned Mr Straton of the respondents' solicitor, according to a file note "advising him of present position and progress with yurt and advising [the appellant] will be able to settle by mid-January although this cannot be guaranteed." Mr Crompton explained in evidence that he meant giving possession rather than settlement. The file note continued - "Noting Mr S's comment that 'if can't give possession by Christmas my clients will not be impressed'. (otherwise noting he seems to accept the situation for what it is)" 45 On 1 December 1989 the appellant's solicitors wrote to the respondents' solicitors, saying that the purchase of the Bucketty land had been completed and construction of the yurt was to begin, and - "Our client has instructed us to convey to you the following: 1. She expects to be able to give vacant possession of the Danger [sic] Island property by mid-January, but this cannot be guaranteed and could take until as late as the end of January in view of the intervention of the Christmas and New Year periods. 2. She expects settlement forthwith together with the right to occupy the property after settlement for up to two months, such occupation to be free of charge until mid-January and thereafter at an occupation fee of $100.00 per week until vacant possession is given. Our client considers this offer to pay occupation fees from mid-January (if continued occupation is necessary) to be a concession to your clients having regard to what she instructs to have been the original agreement with your clients for two months occupation entitlement after settlement, such agreement being arrived at on a verbal and handshake basis. Kindly advise at your earliest convenience whether your clients are agreeable to settling forthwith on the above terms."

[26]

46 The response by a letter of 6 December 1989 was that the respondents' instructions remained as in their solicitors' letter of 14 November, 1989, and "We will require vacant possession on settlement of the matter." 47 In the absence of more complete evidence, inference is permissible, and the appellant's stance in November-December 1989 reveals her stance as at 1 November 1989. In my view, it was "intimated" to the respondents that the appellant would not complete the contract unless she did not have to give up possession of the property until a date later than 8 December 1989, if that were necessary for the construction of the yurt and her move to the Bucketty land. That was made apparent by the appellant's failure to stipulate a date (in context, meaning time and place as well as date) for completion, as it would have appeared to the respondents because she insisted on at least the two months she said had originally been agreed and was not able or prepared to give up possession of the property until the yurt had been constructed and she could move to the Bucketty land; by the letter of 9 November 1989, which must have reflected the appellant's stance in previous communications between the solicitors and between the parties; and by the letter of 1 December 1989, which explicitly said that the appellant "expects settlement forthwith together with the right to occupy the property after settlement for two months" (emphasis added). I conclude that as at 1 November 1989 and thereafter the appellant's position as conveyed to the respondents was that she wanted settlement on the basis of what she contended was, in the words of the letter of 1 December 1989, "the original agreement … for two months occupation entitlement after settlement", and only on that basis. 48 It follows, in my opinion, that the respondents were absolved from performance of their obligation to complete by payment of the balance of the purchase price, on 1 November 1989 and thereafter. They did not breach the contract in that respect, nor did they repudiate it. It may be noted that until October 1998 the appellant maintained in her cross-claim that she was entitled to the two months' possession under what I have referred to as the true contract, and that when the commencement of the proceedings brought discussions with a view to completion of the contract the discussions foundered because even then the appellant would only complete on terms not in the contract, including that the respondents concede that the contract was subject to the two months' possession. By that time the appellant had moved to the Bucketty land. What matters is the "intimation" to the respondents, but this demonstrates the firmness with which the appellant sought what she believed was her entitlement. 49 The other grounds of appeal require less lengthy attention.

[29]

Ground 3 : The Judge allowed the Plaintiffs to present evidence about other cases in which the Defendant had tried to solve her problems, which were not relevant to this case, to try and cause her detriment. 54 One occasion was identified by the appellant. In the cross-examination of Mr Crompton he was asked some questions about proceedings brought against him by the appellant in the District Court, in which the appellant alleged negligence on his part in relation to the sale of the property. In the course of examination in chief of Mr Crompton the appellant had obtained Mr Crompton's adoption of the evidence in some pages of the transcript of his evidence in those proceedings, without specifically identifying the proceedings. The questions in cross-examination were directed to identifying the proceedings and, at least on Mr Crompton's understanding, the allegations made against him. At the beginning of these questions the appellant objected, saying "It is part heard". Young J ruled, "That doesn't matter". 55 Although she did not specifically go to it in the appeal, at a later time there were put to the appellant some questions and answers from the transcript of her evidence in the proceedings against Mr Crompton and the Bank of New Zealand proceedings next mentioned. She affirmed her evidence in part and qualified it in part. With the first reference at this time to the proceedings against Mr Crompton, the appellant queried "whether that is relevant to this case". It may be that she intended that the ground of appeal extend to this occasion also. 56 The appellant's complaint in the appeal was that the evidence was not relevant. She also complained, going beyond the ground of appeal, that she was not allowed to present evidence about her other cases. This appears to have been a reference to some other proceedings between the appellant and the Bank of New Zealand in the District Court, and to the disallowance of evidence which the appellant began to give with the words, "When I cross-examined Mr Straton in the District Court at Gosford …". There was an objection, and the appellant then tendered, and there were admitted without objection, two pages of the transcript of the evidence of Mr Straton in the Bank of New Zealand proceedings. 57 It was relevant, although perhaps of minor relevance, for the nature of the proceedings in which Mr Crompton had given his earlier evidence to be known. It does not matter, because if it was not relevant the evidence played no part in the outcome of the proceedings, and was not involved in the findings or reasoning of Young J or in these reasons. In principle there could be put to the appellant her evidence in the other proceedings, although as matters turned out her affirmation or otherwise of the evidence may not have had relevance; that evidence is not involved in the findings or reasoning in these reasons. The appellant was allowed to present evidence about the Bank of New Zealand proceedings, although with what Mr Straton had said being via the transcript rather than the appellant's account, and I can not see any error in relation to this or, having read the transcript of the proceedings before Young J in full, anything else to do with the appellant presenting evidence about her other cases. There is nothing in this ground warranting appellate intervention.

[31]

Ground 5 : The Judge allowed the Plaintiffs to produce Transcript of other proceedings in spite of the objection of the Defendant. 59 This was concerned with the use of the transcript of the proceedings against Mr Crompton and the Bank of New Zealand proceedings, to put to the appellant some questions and answers from her evidence. 60 Early in her examination in chief of Mr Crompton the appellant tendered part of the transcript of his evidence in the proceedings against him. Objection was taken on the ground of relevance. In the explanation which Young J then gave to the appellant he said that the transcript was not admissible except by consent, but that Mr Crompton could be asked the same question as he was asked in the transcript. That seems to have been done, and then there was consent to Mr Crompton affirming generally the evidence in some pages of the transcript and the tender of those pages. 61 In her own evidence in chief the appellant referred to discovery in the Bank of New Zealand proceedings, in a context in which it appeared that she was going to make use of documents obtained on discovery. Young J informed her that she could not do so without the permission of the District Court (see for example Home Office v Harman (1983) 1 AC 280). 62 When in the cross-examination of the appellant the transcript of the Bank of New Zealand proceedings was first used in the manner described above, she objected, saying that Young J had told her that she could not use "this evidence", meaning the transcript. It is not clear whether the appellant had in mind his Honour's ruling in relation to the transcript of Mr Crompton's evidence or his ruling in relation to discovered documents. Whatever she had in mind then, her complaints on the appeal were, I think, that the respondents' permitted use of the transcript in her cross-examination conflicted with the earlier rulings as to her use of the transcript and of discovered documents. 63 There was no conflict. The transcript was not a document discovered in the Bank of New Zealand proceedings, and was not subject to the restrictions on user applicable to such documents. Its use to put to the appellant her earlier evidence was different from the use of the transcript of Mr Crompton's evidence which the appellant had at first attempted; indeed, it was consistent with the use the appellant thereafter made of that transcript. There was no proper objection to the course taken by the respondents.

[44]

(g) The Plaintiffs representatives removed "original" documents from the subpoenaed files. This evidence was therefore not accessible for the Defendant. Further, the Defendant has no way of being sure that the document produced at the hearing was bona fide. 77 The essential complaint under this ground, as stated by the appellant, was that she had been "unable to get the evidence I needed to prove my case". It seemed to have three elements. 78 The first element was that the respondents had not complied with an order made by the Registrar on 25 June 1998, which the appellant considered had deprived her of evidence for her case. She pointed to an entry in the Court's computerised records for that day reading, after correction of typing errors, "By consent as per notice of motion 1 & 2 that the pltfs comply with the notice to produce dated 28.2.98 and extended to 1.4.98 that the pltfs and their solicitor P J Straton extend their affidavits to include the period until after December 1991 when they purchased the property the subject of these proceedings from the Bank of New Zealand". The appellant appears to have considered that this obliged the respondents and Mr Straton to file further substantive affidavits, as distinct from affidavits of discovery. 79 That is doubtful, although the reference to Mr Straton would be odd if the order were only as to affidavits of discovery. However, even if it were so the order would only requiring the filing of affidavits concerning the later period if the respondents intended to rely on the events of the later period: it would not require the respondents to put forward affidavits for the benefit of the appellant. In any event, the appellant made no application to compel the respondents to file the further affidavits, but went to trial without them. 80 The second element was that Windeyer J had refused to delay the hearing. It was linked with the first element, in that the appellant said that the hearing should have been delayed because she did not have the further affidavits. We were taken to the transcript of the appellant's application to amend her cross-claim made to Windeyer J on 9 October 1998. At that time the hearing of the proceedings was fixed for 27 October 1998. The application was refused, but with liberty to apply again with a freshly drawn pleading. No application to delay the hearing was made: on the contrary, the transcript shows that the appellant was anxious to proceed on the appointed date. The appellant applied to Windeyer J again on 21 October 1998, when the further amended cross-claim was filed in court, and in her submissions on the appeal she said that she asked Windeyer J to delay the hearing on that occasion. 81 There was no notice of motion, we were not taken to any transcript of the occasion, and the brief reasons given by his Honour when granting leave to amend the cross-claim make no mention of a request, formal or otherwise, to delay the hearing. No application was made to Young J on 27 October 1998. I do not think it has been shown that there was a refusal to delay the hearing of the proceedings. 82 The third element was that in para (g) of this ground. The document in question (not documents) was the contract. The appellant said in her submissions on the appeal that the respondents had subpoenaed her solicitors' documents "from the District Court", that when she inspected the documents there was no contract in them, but that "a contract document appeared in the Court … and yet they [the respondents] say they got it from the subpoenaed file and put it back and they say they took the original out, it had to go back to the files". This appears to have been a reference to the respondent's counsel before Young J saying, after judgment had been given, that he suspected that the contract in evidence before his Honour had come from the District Court documents and that it should go back to them. 83 What the appellant said in the appeal is questionable when the transcript of that occasion records the appellant saying that the contract in evidence before his Honour (which she had tendered) was her copy , and "The one they took, they took out of the court packet and used as an exhibit". We are not in a position to determine what might have happened about a contract in the District Court documents, and what the appellant said should be treated as no more than her assertion. It does not matter in the appeal, because the appellant had a contract which was plainly the contract as exchanged, and tendered it as the contract. 84 This ground does not provide any reason for appellate intervention. Ground 13 : Due to all the relevant evidence that the Defendant needed being refused to her, she was forced to call her ex-solicitor to give evidence in this matter. This witness, who the Defendant is suing for negligence, gave evidence that was detrimental to her. In spite of the Defendant producing documents which showed the witnesses statements to be untrue, the Judge accepted the evidence of the witness. The Judge disregarded written evidence which refuted this witnesses statements and also refused the Defendant the opportunity of asking questions of this witness which would also show his evidence to be untrue. 85 The witness was Mr Crompton. There was no reason why Young J should not have accepted his evidence for whatever part it played in his Honour coming to his conclusion. The appellant's complaint was that she was not allowed to show documents to Mr Crompton "to show that the evidence was different to what he was giving". When requested to take us to where she attempted to do this but it was not allowed, she referred in the transcript to occasions in re-examination when she wanted to take Mr Crompton to letters written by his partner and to a letter written by the Commonwealth Bank. The respondents objected, and his Honour upheld the objections. 86 Either because what the appellant wished to do did not arise out of the cross-examination of Mr Crompton or because in any event she wished to ask him about documents not his documents as some form of cross-examination of her own witness, or for all these reasons, his Honour correctly upheld the respondents' objections. We were taken in the appeal to the so-called letter from the Commonwealth Bank, and it was in fact an internal note of the bank. There is nothing in this ground.

[45]

Ground 14 : The Defence was filed during the Hearing. The Defendant, who was unrepresented, had no time or assistance to study this document. 87 The further amended cross-claim was filed in court on 21 October 1998. The defence to it was filed in court on 27 October 1998, at the commencement of the hearing. The appellant said that she had read it, and - "HIS HONOUR: Do you know what to do with it? LACEY: There are no rubbish bins near us. HIS HONOUR: In the paragraph marked 1 write A, in other words they admit it. On the 2 put a D, they deny that, you have to prove it. Against 3 and 4 put a D to show they deny that and show you have to prove it; against 5 put part A to show they partly admit it then 6, 7, 8, 9, 10 and 11 you can put a D against, you have to prove all that. There is a 13 which is something that they may have to prove. LACEY: I see what you mean. HIS HONOUR: You have to prove what is in your cross-claim. They have to prove any defence which sets up something new." 88 The appellant's complaint, as stated, was that she "should have been able to at least have a couple of days to go and ask somebody about it". She had been given some assistance by Young J, and she had said that she understood. She did not ask for time. She knew what she had to prove; it included that the respondents had breached the contract by failing to complete on 1 November 1989 and thereafter. As earlier noted, later the appellant had the overnight adjournment and indicated that she wanted to "phone up the friend who gave some advice and ask what to do": the context was using the affidavits of the respondents and Mr Straton. Still she did not ask for time. She can not now complain that she should have been given time. 89 The appeal books were not prepared in the normal manner, and contained a great deal of material which was not in evidence before Young J. It was necessary to winnow from the documents in the appeal book those which were in evidence. The appellant applied to have additional material received, being the documents referred to in her affidavits sworn 26 June 2000 and 7 July 2000 and taking up most of the remaining documents in the appeal books. 90 The appellant was requested to identify as she went to each ground of appeal the material not in evidence before Young J on which she wished to rely. She referred to a small number of documents when dealing with the earlier grounds of appeal, and we ruled that we would not receive them. She referred generally to the affidavits of the respondents and Mr Straton, which together with their annexures were reproduced in the appeal books, when addressing ground 7, but their content did not matter to the disposal of that ground: the affidavits should not be received. She referred to the Court's record of proceedings and parts of the transcript of the application before Windeyer J described earlier in these reasons, and without troubling about its correct status this material should be received: it is in a different category from the documents next mentioned. In her submissions in reply she began to refer to documents in the appeal books not in evidence before Young J as documents showing what really happened about completion of the contract. It had become apparent that none of this additional evidence met the requirements of s 75A of the Supreme Court Act. We indicated that we would not receive it. 91 In my opinion the appeal should be dismissed with costs. 92 FITZGERALD JA: I agree with the other members of the Court that this appeal should be dismissed with costs. I agree with the reasons for judgment of Giles JA in relation to the grounds other than ground 10. While I am also in general agreement with his Honour's reasons for rejecting that ground, there are some matters referred to by his Honour upon which I do not need to comment and I propose to add some additional comments. 93 Once 8 December 1989 passed without the contract being lawfully terminated by either party, it remained binding for the benefit of both parties. After 8 December, the appellant was obliged to give possession of her property on completion. She was unwilling to do so. She did not prove that she was entitled after 8 December to refuse possession on completion because of some breach of contract by the respondents. 94 The respondents sued for specific performance. While that action was on foot, the appellant became unable to complete her contract with the respondents because her mortgagee sold her property to the respondents. It was not argued that the respondents were not permitted to buy the property from the mortgagee without discontinuing their action for specific performance. 95 In these circumstances, the appellant did not prove that either her loss of her contract with the respondents or any consequential loss was caused by a breach of the contract by the respondents. 96 HEYDON JA: I agree with Giles JA.

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