//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2020] QSC 136
plaintiff. Declared that the applicant satisfied Special Condition 3 within the time permitted by the contract; respondents' termination notice dated 15 April 2020 is invalid and of no effect; respondents...
The Court held that the Seller complied with a contract term requiring provision of a Pool Safety Certificate '7 days prior to Settlement' by emailing the Certificate at 6.31 pm on that penultimate calendar day (15 April 2020). The Buyers' attempt to treat the Certificate as a 'notice' and to rely on the contract's notice-deeming clause (which would have treated a post-5 pm email as given at 9 am next Business Day) failed, because the special condition required provision of the Certificate itself and expressly prevailed over other contract terms. The Buyers' termination at 5.03 pm was therefore invalid. The Court declared performance and ordered the Buyers to specifically perform the contract and to pay indemnity costs (paras [24]-[31], [32]).
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,911 words · generated 16/06/2026
On 22 February 2020 the parties entered into a REIQ-form contract for sale of residential land following an auction, with settlement fixed at 60 days from contract date, namely 22 April 2020 ([1]). The contract incorporated the standard REIQ Terms (16th edition) and contained a special condition (Special Condition 3) which stated, in the operative terms, that "the Seller agrees to provide a Pool Safety Certificate to the Buyer 7 days prior to Settlement" and that this was "an essential term of the contract" ([1]). The parties proceeded on the footing that the day which was "7 days prior to Settlement" was 15 April 2020 ([2]).
1 cited instrument linked from this judgment.
On 15 April 2020 at 5.03 pm the buyers' conveyancer sent an email terminating the contract on the ground that the seller had not provided the Pool Safety Certificate as required by Special Condition 3, and demanded a full refund of the deposit ([3]). At 6.31 pm the seller's solicitor emailed and attached a Pool Safety Certificate to the buyers' conveyancer ([4]). The seller denied breach and asserted that the buyers' purported termination was ineffective ([5]).
The seller commenced proceedings for declarations and an order for specific performance. The dispute at the hearing was confined to the proper construction of Special Condition 3 and whether the buyers were entitled to terminate at 5.03 pm on 15 April. If the court accepted the seller's construction the seller would be entitled to specific performance; if it accepted the buyers' construction, the buyers' termination would stand and specific performance would not be ordered ([6]).
Bowskill J found for the seller: clause 10.4(5) (the REIQ notice-deeming provision) did not apply to the obligation to provide the Pool Safety Certificate; where a contractual term specifies a day for performance without fixing a time of day, performance may occur at any time on that day; and therefore the Certificate provided at 6.31 pm on 15 April complied with Special Condition 3. The termination was invalid, and the court ordered specific performance and indemnity costs ([24]-[31], [32]).
The decision turns on construction. The court followed standard principles: objective construction by reference to words used, surrounding circumstances known to the parties, and purpose of the transaction ([7]).
Two constructions were contended for:
The buyers said clause 10.4 should apply. Clause 10.4(5) treats notices given after 5 pm on a Business Day and before 9 am on the next Business Day as being given at 9 am the next Business Day. The buyers' position was that a Pool Safety Certificate was a "notice under this contract or notices required to be given by law", so the Certificate emailed after 5 pm on 15 April should be treated as given at 9 am on 16 April, thus failing Special Condition 3 ([16]-[18]).
The seller said the Certificate was not a "notice" for the purposes of clause 10.4 and, in any event, Special Condition 3 did not fix a time of day so performance on the calendar day (15 April) at 6.31 pm satisfied the obligation; the general rule is that where a contract specifies a day for performance, the obligor may perform at any time on that day [authorities cited] ([20], fn [4]). The seller also emphasised that Special Condition 3 was expressed to apply "notwithstanding anything else in this contract" and thus should displace general provisions when they are inconsistent ([25]).
Bowskill J accepted the seller's construction. The judge distinguished between giving a "notice" (a means of conveying information) and providing an actual document. The REIQ contract itself treats notices as a particular category of communication in clauses that require "notice", while other clauses require provision of documents. Special Condition 3 required the provision of the Pool Safety Certificate, not the giving of a notice. Given this difference, the deeming rule in clause 10.4(5) did not apply ([24]-[26]). The court also noted that clause 10.4(5) relates to Business Days and had no obvious application to a special condition expressed in ordinary days, creating a further reason not to read clause 10.4 into Special Condition 3 ([26]).
The court also rejected the buyers' alternative argument that "7 days prior to Settlement" should be read as seven consecutive 24-hour periods ending at the latest time settlement could occur under clause 5.1(1) (i.e. 4 pm on 15 April). The judge explained that the ordinary meaning of a "day" is a calendar day running from midnight to midnight, and the law generally does not take account of fractions of a day. Moreover, the contract left the precise time of settlement uncertain (clause 5.1 gives a 9 am to 4 pm window but clause 6.1 provides that time of day is not of the essence and parties could agree a different time), making it artificial to compute the seven-day period as 24-hour blocks prior to an event of uncertain time. Consequently, the period was to be computed in calendar days and performance at 6.31 pm on 15 April complied ([28]-[31]).
Accordingly, the seller met Special Condition 3 within the time permitted, the buyers' termination was of no effect, and specific performance was ordered together with indemnity costs ([31]-[32]).
Before this decision the general principles applied were well established:
This decision applies those established principles to a common conveyancing setting: a purchaser attempting termination for alleged late delivery of a certificate claimed to be caught by a general notice clause. The case reiterates and clarifies several points:
After this authority, practitioners should take care when drafting to: (a) specify whether time-limited obligations require provision by a particular time of day; (b) specify whether 'days' means Business Days or calendar days; and (c) expressly state whether a document delivered by email is to be treated as a 'notice' and governed by notice-deeming rules.
Para [1] (special condition text): The seller had to give the Pool Safety Certificate seven days before settlement, and both parties agreed this was essential. Plain English: deliver the certificate seven days before the scheduled settlement date; it was an important part of the deal.
Para [24]: "Clause 10.4 is a general provision dealing with 'notices'. Special condition 3 is a particular condition... The obligation under special condition 3 was to provide the Pool Safety Certificate; special condition 3 is not concerned with the giving of a notice." Plain English: the rule that controls emails sent after 5 pm is about 'notices' generally, but this contract term required the actual certificate itself; the two are different, so the general notice rule does not automatically apply.
Para [31]: "The Seller had until the end of that day to comply... As the Certificate was provided at 6.31 pm on that day, the obligation was complied with..." Plain English: because the contract said the certificate must be given seven days before settlement and did not fix a time, the seller could give it any time on that day; sending it at 6.31 pm was on time.
Para [28]-[30]: On 24-hour-block argument. Plain English: saying "7 days before settlement" usually means count back by calendar days, not a precise count of 24-hour blocks tied to the unknown time settlement will happen.
This decision is most directly relevant where:
In those circumstances, absent express drafting to the contrary, a court will be predisposed to treat the calendar day as the operative deadline and will distinguish between 'notices' covered by a deeming clause and contractual obligations to provide documents under a particular condition.
As this is itself a 2020 QSC decision, subsequent treatment would be a matter of later reported Queensland or other Australian decisions. This deep dive confines itself to the judgment's content: the judge relied on established High Court and other authority for the underlying construction principles (see fn [1], fn [4], fn [11]-[12]) and applied them in a commercial conveyancing context. The decision is consistent with authorities that treat calendar-day deadlines as allowing performance until the end of the day and with principles that particular contractual provisions govern over general ones when there is a conflict (paras [20], [25]). For subsequent treatment, practitioners should search later Queensland and appellate decisions to see if any appellate court has affirmed or distinguished this application in post-2020 case law.
Would the result be different where the special condition expressly incorporated the notice-deeming mechanism or required that "notice of provision" be given by a particular time? This decision turns on textual distinction; explicit drafting could change the outcome. The case highlights the drafting risk where parties intend to make time-of-day critical but fail to express it.
How will courts approach analogous obligations where statutory schemes require that a certificate be 'given' rather than 'provided' and where there are statutory timing consequences? Bowskill J explained the statutory meaning of a Pool Safety Certificate in the Building Act context (paras [12]-[15]) but the decision here resolved the contract question on construction rather than on a statutory enactment timing issue.
How should parties treat electronic delivery and receipt semantics in future contracts? Clause 10.4 deals with electronic transmission times and the decision distinguished giving a document from a notice; however, increasing reliance on electronic exchanges may call for clearer express contractual rules about when e-mails, attachments or links to repositories constitute delivery for performance purposes.
If parties intended 'days' to be computed by reference to the exact time of an event (e.g. settlement), a clear drafting mechanism should be used. There remains, therefore, a line-drawing question about when it is appropriate to construe 'days' as calendar days and when a contexts demands 24-hour-block reckoning. Bowskill J reiterated that such constructions are fact- and language-dependent (para [29]-[30]).
Practical takeaway: where timing is critical, specify the exact time or incorporate deeming rules into the particular special condition; do not rely on a general notice clause to control the timing of provision of documents unless that is the express intention of the parties.
CONVEYANCING - THE CONTRACT AND CONDITIONS OF SALE - OTHER PARTICULAR CONDITIONS - where a contract for the sale of real property included a special condition requiring the Seller to provide a Pool Safety Certificate to the Buyer "7 days prior to Settlement" - where the Buyer purported to terminate the contract at 5.03 pm on the relevant day, on the basis that the Seller had breached the special condition - where the Seller provided the Certificate at 6.31 pm on the relevant day - where there is a dispute as to the proper construction of the special condition - where the Seller relies upon the principle that where a contract specifies a date by which something is to occur, satisfaction of the obligation can occur at any time on that day - where the Buyer contends the general notice provision of the contract applied to the special condition, so as to require the Certificate to be provided by 5 pm, failing which it would be treated as provided at 9 am the following day - alternatively, whether the time period under the special condition was properly construed as seven consecutive time periods of 24 hours prior to the event of settlement - whether the Buyer was entitled to terminate the contract
Afovos Shipping Co SA v Pagnan [1983] 1 WLR 195
Aussie Invest Corporation Pty Ltd v Pulcesia Pty Ltd [2005] VSC 362; (2005) 13 VR 168
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Durrant v Gardner [2000] QDC 198
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Ex parte Robertson [1983] 1 Qd R 526
Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421
Greencapital Aust Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2019] NSWCA 53
Lester v Garland [1808] EngR 326; [1808-13] All ER Rep 436; (1808) 15 Ves 248 [33 ER 748]
Mitano Pty Ltd v Hardoin [2005] QSC 402
Mearns v Parras Holdings Pty Ltd [1994] ANZ ConvR 500
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Paclyn Pty Ltd v GP Harris Real Estate Pty Ltd (1987) BPR 9267
STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
[1] On 22 February 2020 the applicant (as Seller) and the respondents (as Buyers) entered into a contract for the sale of a residential property at Minyama. The contract was formed on a sale by auction. The settlement date was agreed to be 60 days from the contract date, which the parties agreed was 22 April 2020. The terms of the contract are the REIQ Terms of Contract (16th edition). In addition, it was a special condition of the contract that:
3.1 Notwithstanding anything else in this contract, the Seller agrees to provide a Pool Safety Certificate to the Buyer 7 days prior to Settlement. The parties agree that this is an essential term of the contract."
[2] The parties proceeded on the basis that the day which was "7 days prior to Settlement", and therefore on which the Pool Safety Certificate was to be provided, was 15 April 2020.
[3] At 5.03 pm on 15 April 2020 the respondents' conveyancer emailed a letter to Margaret Hall of the applicant's solicitor, which said:
"We refer to the above matter and note that Special Condition 3 was due to be satisfied by the Seller today.
We note that the Seller has failed to provide the Buyer with a copy of the Pool Safety Certificate in accordance with Special Condition 3.
We confirm that the Seller has breached an essential term of the Contract and accordingly, our client hereby terminates the Contract.
As the Contract is now at an end, we ask that you instruct the agent to make a full refund of the deposit to our client."
[4] At 6.31 pm that evening, Bradley Clark of the applicant's solicitor sent an email to the respondents' conveyancer, attaching the Pool Safety Certificate "in accordance with Special Condition 3 of the Contract of Sale".
[5] The following day, 16 April 2020, the applicant's solicitor emailed a further letter to the respondents' conveyancer, reiterating that the Pool Safety Certificate had been provided by 15 April 2020, as required by special condition 3; and denying that the Seller had breached the contract and that the Buyer had any right to terminate the contract.
[6] The issue on this application is whether the respondents were entitled to terminate the contract at 5.03 pm on 15 April 2020 on the basis that the applicant was in breach of special condition 3. The resolution of this dispute turns on the proper construction of special condition 3. By its present application, the applicant presses for specific performance of the contract. The parties agree that if the construction question is answered as the applicant contends, there should be an order for specific performance; but if it is answered as the respondents contend, there should not.
[7] The relevant principles of construction are uncontroversial. The contract is to be construed objectively, by reference to what a reasonable person in the position of each of the parties would have understood it to mean, having regard to the language used by the parties, the surrounding circumstances known to the parties and the purpose and object of the transaction.[1] The focus is on the words used by the parties in the particular provision concerned, construed in the context of the contract as a whole.[2]
[8] Having been formed following a sale at auction, the contract was not subject to finance, and not subject to a building and/or pest inspection report. In relation to the pool on the land, it is recorded on page 4 of the reference schedule that there was no "Compliance or Exemption Certificate for the pool at the time of the contract", and that a "Notice of no pool safety certificate" had been given prior to the contract.
[9] The "notes" adjacent to these "pool safety" items in the reference schedule include a "warning to buyer", that "[i]f there is no Compliance or Exemption Certificate at settlement, the Buyer becomes responsible at its cost to obtain a Pool Safety Certificate within 90 days after settlement. The Buyer can also become liable to pay any costs of rectification necessary to comply with the Pool Safety Requirements to obtain a Pool Safety Certificate...". This appears to reflect the obligation under of the (Qld).
"231C What is a pool safety inspection function
A pool safety inspection function is doing any of the following -
(a) inspecting a regulated pool to decide whether to give a certificate (a pool safety certificate) that states the pool is a complying pool;
(b) carrying out minor repairs relating to a regulated pool arising from an inspection of the pool under paragraph (a);
(c) the giving of a pool safety certificate for a regulated pool;
(d) the giving of a nonconformity notice for a regulated pool."
[14] As defined in s 231A, a "complying pool" means a pool that complies with the "pool safety standard", which is defined in s 231D. Section 246AU of the Building Act provides that "[a] person who is not a pool safety inspector must not perform a pool safety inspection function unless the function is carrying out minor repairs mentioned in section 231C(b)".
[15] So a Pool Safety Certificate is a certificate, given by a pool safety inspector, that states the pool is a complying pool.
[16] The respondents contend that construing special condition 3 in the context of the contract as a whole, the Seller was required to provide the Pool Safety Certificate by no later than 5 pm on the day which is 7 days prior to Settlement (15 April 2020). If the Certificate was provided after 5 pm (as it was in this case), it would be deemed to have been provided at 9 am the following day (therefore, less than 7 days prior to Settlement).
[17] That contention relies upon the operation of clause 10.4 of the contract (comprising part of the REIQ Terms of Contract), which is as follows:
(1) Notices under this contract must be in writing.
(2) Notices under this contract or notices required to be given by law may be given and received by the party's solicitor.
(3) Notices under this contract or notices required to be given by law may be given by:
(a) delivering or posting to the other party or its solicitor; or
(b) sending it to the facsimile number of the other party or its solicitor stated in the Reference Schedule (or another facsimile number notified by the recipient to the sender); or
(c) sending it to the email address of the other party or its solicitor stated in the Reference Schedule (or another email address notified by the recipient to the sender).
(4) Subject to clause 10.4(5), a notice given after this contract is entered into in accordance with clause 10.4(3) will be treated as given:
(b) if sent by facsimile, at the time indicated on a clear transmission report; and
(5) Notices given by facsimile, by personal delivery or by email between 5pm on a Business Day (the 'first Business Day') and 9am on the next Business Day (the 'second Business Day') will be treated as given or delivered at 9am on the second Business Day.
(6) If two or more notices are treated as given at the same time under clause 10.4(5), they will be treated as given in the order in which they were sent or delivered.
(7) Notices or other written communications by a party's solicitor (for example, varying the Inspection Date, Finance Date or Settlement Date) will be treated as given with that party's authority.
(8) For the purposes of clause 10.4(3)(c) and clause 12.2 the notice or information may be contained within an email, as an attachment to an email or located in an electronic repository accessible by the recipient by clicking a link in an email."
[18] In acting to terminate the contract, at 5.03 pm on 15 April 2020, the respondents submit they were relying upon the operation of clause 10.4, together with special condition 3, on the basis that the Pool Safety Certificate is a "notice" required to be given "under this contract" or "by law". The respondents submit the effect of clause 10.4(5) is that, since the Certificate was provided after 5 pm on the relevant day, it is to be treated as given at 9 am on the following day, in breach of the special condition.
[19] The applicant submits the Pool Safety Certificate is not a "notice" for the purposes of clause 10.4; what was required to be provided was the Certificate (given by a pool safety inspector), as opposed to notice of some act or thing. As such, the deeming effect provided for by clause 10.4(5) did not apply.
[20] The applicant emphasises that special condition 3 does not specify a time by which the Certificate is to be provided; it only specifies that the Certificate be provided "7 days prior to Settlement". The applicant relies upon the principle that, where a term of a contract specifies a date by which something is to occur, satisfaction of the obligation can occur at any time on that day, effectively up until midnight on the day.[4] The principle has also been applied where a period of time is specified (for example, a number of days before or after an event) as opposed to a particular date.[5] It is, however, ultimately a matter of construction of the particular document.[6]
[21] There was no dispute that the reference to "days" in special condition 3 means ordinary days (as opposed to Business Days, a term which is defined in clause 1.1 of the contract).
[22] As already noted, there is also no dispute that the relevant (final) day for performance of this obligation was 15 April 2022.[7] Accordingly, it is apparent that the time under the special condition was calculated by including the date of settlement (22 April 2020) rather than excluding it. Although the clause could perhaps have been construed in a manner that excluded the date of Settlement,[8] as the cases make plain there is no rigid rule in these matters, it is always a matter of construction of the contract, and in any event it was clearly a matter of agreement.
[1] Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40]; Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 at [46]- [47]; Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; at , [17] and [73].
[2] Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 at 109 per Gibbs J; Greencapital Aust Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2019] NSWCA 53 at [51].
[3] See clause 4.2(1)(b), which provides that clause 4.2 applies if "this contract is not a contract of a type referred to in section 160(1)(b) of the Property Occupations Act 2014". Section 160(1)(b)(i) of that Act refers to "a contract formed on a sale by auction".
[4] Ex parte Robertson [1983] 1 Qd R 526 at 528 (at first instance) and at 530 (Full Court agreeing); Afovos Shipping Co SA v Pagnan [1983] 1 WLR 195 at 201; Paclyn Pty Ltd v GP Harris Real Estate Pty Ltd (1987) BPR 9267 at 9271; Mitano Pty Ltd v Hardoin [2005] QSC 402 at [4], [32] and [35]; STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240 at [90].
[5] Mearns v Parras Holdings Pty Ltd [1994] ANZ ConvR 500 at 502-503.
[6] Aussie Invest Corporation Pty Ltd v Pulcesia Pty Ltd [2005] VSC 362; (2005) 13 VR 168 at [313].
[7] This was not controversial; see also the email from the respondents' conveyancer to the applicant's solicitor on 27 February 2020 (Mr Latimore's affidavit at p 26).
[8] Cf, for example, Breadner v Granville-Grossman [2001] Ch 523 at [35]-[43] (holding that where a power of appointment had to be exercised "before" a specified date, it could not validly be exercised on the specified date itself). See also Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 440-441 per Gibbs J; but cf Greencapital Aust Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2019] NSWCA 53 at [38].
[9] For example, clause 3.2 (requiring the Buyer to give notice to the Seller either that (finance) approval has not been obtained, or that the finance condition has been satisfied or waived); clause 4.2(2) (requiring the Buyer to give notice to the Seller that a satisfactory Inspector's report has not been obtained, or that the building and pest inspection condition has either been satisfied or waived); clause 6.2(4) (requirement to give notice that a party is no longer affected by a Delay Event); clause 6.2(6) (Notice to Settle); clause 8.2 (providing for notice before obtaining access pre-settlement); and clauses 3.3, 4.1(4), 4.2(4) and (5), 7.6(4) and 7.7(1) (notice of termination in various circumstances).
[10] For example, clause 2.5(5)(c) (requiring the Buyer to give the Seller copies of various documents where the Buyer is required to pay a GST Withholding Amount); clause 2.6(14) (requiring the Seller to provide the Buyer with a statement, supported by reasonable evidence, of Outgoings and Rent for the property. See also clause 3.1 (providing that the contract is conditional on the Buyer obtaining finance approval) and clause 4.1(1) (providing that the contract is conditional upon the Buyer obtaining a written Building Report), neither of which require the approval or report to be provided, but rather notice of an event (cll 3.2 and 4.2).
[11] Lester v Garland [1808] EngR 326; [1803-13] All ER Rep 436; (1808) 15 Ves 248 [33 ER 748], referred to in Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 446 per Gibbs J; see also the discussion of authorities in the decision of McGill SC DCJ in Durrant v Gardner [2000] QDC 198 at [18]- [21].
[12] See, for example, Cornfoot v Royal Exchange Assurance Corp [1904] 1 KB 40, in which a marine insurance contract which described the insurance as being for a voyage to Algoa Bay "and for 30 days in port after arrival" was construed as meaning 30 consecutive periods of twenty-four hours after the ship had actually arrived in the Bay; cf Cartwright v MacCormack [1963] 1 WLR 18 at 22-23; see also Lewison, The Interpretation of Contracts (Sweet & Maxwell, 6th ed, 2015) at [15.05].
[13] See, for example, Mr Latimore's affidavit at p 26 (email from the respondents' conveyancer seeking agreement to vary clause 5.1(1) to provide for settlement to occur between 9 am and 5 pm).
[14] See [15] of the applicant's submissions and [4] of the respondents' submissions.
[15] Noting that the amendment is a minor matter of form, to change "plaintiff" to "applicant".
Latimore Pty Ltd
Lloyd [2020] QSC 136
(2005) 13 VR 168
(1973) 129 CLR 99
(2017) 261 CLR 544
(2014) 251 CLR 640
(1972) 127 CLR 421
(2015) 256 CLR 104
(2004) 218 CLR 451
(2004) 219 CLR 165
Declared that the applicant satisfied Special Condition 3 within the time permitted by the contract; respondents' termination notice dated 15 April 2020 is invalid and of no effect; respondents ordered to specifically perform the contract by 4 pm on 2 June 2020 (or earlier by agreement), including payment of the balance purchase price and interest; respondents to facilitate release of deposit on settlement; respondents to pay applicant's costs on an indemnity basis (para [32]).
[10] Where it applies, the standard REIQ condition 4.2 (dealing with pool safety) imposes the responsibility for obtaining a Pool Safety Certificate on the Buyer, but gives the Buyer a right to terminate if a Pool Safety Certificate has not been issued by the Pool Safety Inspection Date (which may be specified in the reference schedule or, if not, is the earlier of the (building and pest) Inspection Date or 2 Business Days before the Settlement Date).
[11] Clause 4.2 does not apply in this case, because the contract was formed on a sale by auction.[3] The parties expressly agreed, by special condition 3 (set out above) that the Seller would provide a Pool Safety Certificate to the Buyer "7 days prior to Settlement".
[12] The standard REIQ Terms of Contract forming part of the contract included, in clause 1.1(2)(bb), a definition of "Pool Safety Certificate" by reference to s 231C(a) of the Building Act 1975.
[13] Section 231C of the Building Act 1975 provides as follows:
[23] The special condition did not prescribe a time of day for compliance.
[24] I accept the applicant's submission that clause 10.4(5) does not apply, so as to require that the Pool Safety Certificate had to be provided by 5 pm on the relevant date. What was required to be provided under special condition 3 was a Pool Safety Certificate, not a notice under the contract or "by law". There is no definition of "notice" in the contract. But the standard Terms of Contract draw a distinction between the giving of notice (which may be construed as a means of conveying information) of something;[9] and the provision of an actual thing (as opposed to notice of it).[10]
[25] Clause 10.4 is a general provision dealing with "notices". Special condition 3 is a particular condition, added to the standard REIQ Terms of Contract, and expressed to apply "notwithstanding anything else in this contract". The obligation under special condition 3 was to provide the Pool Safety Certificate; special condition 3 is not concerned with the giving of a notice.
[26] Apart from distinguishing a Certificate from a notice, it is also difficult to reconcile the reference to Business Days in clause 10.4(5) with the obligation as expressed in special condition 3 (which refers to ordinary days). There is no apparent reason why special condition 3 should be construed such that if the Certificate was provided after 5 pm on a Business Day, it should be treated as not given until 9 am on the following Business Day, when the time period is calculated by reference to ordinary (calendar) days.
[27] I find, as a matter of construction of special condition 3 in the context of the contract as a whole, that clause 10.4(5) does not have the effect that special condition 3 had to be complied with by 5 pm on 15 April 2020. In light of this conclusion, it is unnecessary to deal with the applicant's alternative argument, as to the meaning of "given" in clause 10.4(5).
[28] The respondents' alternative argument is that, if the Pool Safety Certificate is not a notice, the time period of "7 days prior to Settlement" effectively meant seven consecutive periods of 24 hours prior to the latest time settlement could be effected under the contract. The respondents submit that the reference to "Settlement" in special condition 3 ought to be construed as a reference to the event of settlement. The respondents emphasise that under clause 5.1(1) settlement must occur between 9 am and 4 pm on the Settlement Date. Therefore, it is submitted, the time for compliance with the obligation under special condition 3 was no later than 4 pm on 15 April 2022.
[29] I reject that submission. The principle that where a contract specifies a day for performance of an obligation, the obliged party has until the end of that day to perform it (midnight) is not informed by the reckoning of a "day" as a period of 24 consecutive hours, but rather on the basis that a "day" is, in its ordinary sense, a calendar day, running from midnight to midnight. That is supported by the principle that, as a general rule the law takes no account of fractions of a day.[11]
[30] Whilst there may be circumstances in which, as a matter of construction of the particular contract, the reference to a time period of days may properly be construed by reference to periods of 24 hours from or prior to a particular event,[12] such a construction is not apt in this case. There is no definition of the term "Settlement" in the contract. The reference schedule of the contract (on p 5) includes a section entitled "Settlement", under which there is space to record the "Settlement Date" and the "Place for Settlement". The Settlement Date was agreed to be "60 days from contract date", namely, 22 April 2020. Reference has already been made to clause 5.1(1). But under clause 6.1, the parties agree that time is not of the essence in so far as any agreement on a time of day for settlement is concerned. And notwithstanding clause 5.1(1), it would be open to the parties to agree on some other time of day for settlement.[13] In the circumstances, it would be artificial to construe special condition 3 by reference to a period of time comprising blocks of 24 hours prior to a particular event, when there is no certainty about what time that event will occur until after the contract is entered into, and it is open to change. In context, "Settlement" in special condition 3 should be construed to refer to the day of Settlement; and the period of time provided for in special condition 3 is not to be computed by reference to any particular time at which settlement may occur on that Settlement day.
[31] This brings me back to the common position of the parties, that "7 days prior to Settlement" was 15 April 2020. In accordance with the general principle referred to at [20] above, the Seller had until the end of that day to comply with its obligation to provide the Pool Safety Certificate. As the Certificate was provided at 6.31 pm on that day, the obligation was complied with in accordance with the terms of the special condition. Accordingly, it was not open to the Buyers to terminate the contract at 5.03 pm.
[32] The parties are otherwise in agreement as to the form of orders to be made, consequent upon the conclusion reached as to the proper construction of the special condition.[14] I therefore propose to make orders, in terms of the draft provided by the applicant, as follows (subject to hearing from the parties whether any variation is sought to the date in order 3, as a result of the time taken before delivering this decision):