Court of Appeal (Qld)|2002-12-06|Before: McMurdo P, Williams JA and Atkinson JSeparate, reasons for judgment of each member of the court, each concurring as to the, orders made
McMurdo P, Williams JA and Atkinson JSeparate, reasons for judgment of each member of the court, each concurring as to the, orders made
Catchwords
CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERS
ARISING BETWEEN CONTRACT AND CONVEYANCE – TIME –WAIVER
–
appeal by purchasers against summary judgment for vendor ordering forfeiture of
Source
Original judgment source is linked above.
Catchwords
CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERSARISING BETWEEN CONTRACT AND CONVEYANCE – TIME –WAIVER–appeal by purchasers against summary judgment for vendor ordering forfeiture ofthe deposit - where contract stated timeis of the essence – wheresettlement date was extended to a fixed date by agreement between the partiesdue to vendor’sfailure to provide release of mortgage - where purchaserssubsequently reserved their rights upon extending the settlement date –where purchasers subsequently rescinded - whether agreed extension of timeamounted to an affirmation of the contract destroyingthe essentiality oftimeCONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – BREACH OFCONTRACT – BREACH BY THE VENDOR:REMEDIES OF PUCHASER– RESCISSION– TIME - where contract stated time of the essence – wheresettlement date extended - where purchasersrescinded contract upon repeated
failure by vendor to provide release of mortgage at agreed dates - whether
learned trial judge erred
in finding that the purported rescission by the
purchasers constituted a wrongful repudiation of the contract thus making the
vendor’s
rescission effectual
CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERS
ARISING BETWEEN CONTRACT AND CONVEYANCE – TIME –WAIVER
- whether
failure by purchasers to tender the price on the extended settlement date and
where vendor also failed to provide release
of mortgage equated to conduct
affirming the contract and destroying the essentiality of time – Foran
v Wight distinguished
CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM – MORTGAGES,
CHARGES AND ENCUMBRANCES – POWERS AND REMEDIES OF MORTGAGEE
–
FORCLOSURE – STATUTORY PROVISIONS - where vendor loses all rights to
settle when mortgagee exercises power of sale
– effect of s 87(1)
Property Law Act considered – whether vendor can rescind once power
of sale exercised
Property Law Act (Qld) 1974, s 87(1)
Carr v JA Berrriman Pty Ltd [1953] HCA 31
(1953) 89 CLR 327, referred toDTR
Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12
(1978) 138 CLR 423,
followedForan v Wight (1989) 168 CLR 375, followedHolland v
Wiltshire [1954] HCA 42
(1954) 90 CLR 409, followedIreland v Leigh [1982] Qd R
145, followedMahoney v Lindsay (1980) 55 ALJR 118,
followedMehmet v Benson [1965] HCA 18
(1965) 113 CLR 295, followedPeter
Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25
(1954)
90 CLR 235, followedRawson v Hobbs [1961] HCA 72
(1961) 107 CLR 466,
followedSpencer v Cali [1986] 2 Qd R 456, followedStephens v
Coorey [1996] Q Conv R 54-469, distinguishedSugden v Parker
(1985) Q Conv R 54-199, referred toSummers v The Commonwealth
CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE - TIME -WAIVER - appeal by purchasers against summary judgment for vendor ordering forfeiture of the deposit - where contract stated time is of the essence - where settlement date was extended to a fixed date by agreement between the parties due to vendor's failure to provide release of mortgage - where purchasers subsequently reserved their rights upon extending the settlement date - where purchasers subsequently rescinded - whether agreed extension of time amounted to an affirmation of the contract destroying the essentiality of time CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - BREACH OF CONTRACT - BREACH BY THE VENDOR:REMEDIES OF PUCHASER - RESCISSION - TIME - where contract stated time of the essence - where settlement date extended - where purchasers rescinded contract upon repeated failure by vendor to provide release of mortgage at agreed dates - whether learned trial judge erred in finding that the purported rescission by the purchasers constituted a wrongful repudiation of the contract thus making the vendor's rescission effectual CONVEYANCING - RELATIONSHIP OF VENDOR AND PURCHASER - MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE - TIME -WAIVER - whether failure by purchasers to tender the price on the extended settlement date and where vendor also failed to provide release of mortgage equated to conduct affirming the contract and destroying the essentiality of time - Foran v Wight distinguished CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - MORTGAGES, CHARGES AND ENCUMBRANCES - POWERS AND REMEDIES OF MORTGAGEE - FORCLOSURE - STATUTORY PROVISIONS - where vendor loses all rights to settle when mortgagee exercises power of sale - effect of s 87(1) Property Law Act considered - whether vendor can rescind once power of sale exercised Property Law Act (Qld) 1974, s 87(1) Carr v JA Berrriman Pty Ltd[1953] HCA 31; (1953) 89 CLR 327, referred to