McPhee v Zarb & Ors [2002] QCA 530

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where purchasers subsequently reserved their rights upon extending the settlement date - where purchasers subsequently rescinded - whether agreed extension of time amounted to an affirmation of the contract destroying the essentiality of time CONVEYANCING - RELATIONSHIP OF VENDOR AND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- RESCISSION - TIME - where contract stated time of the essence - where settlement date extended - where purchasers rescinded contract upon repeated failure by vendor to provide release of mortgage at agreed dates - whether learned trial judge erred in finding that the purported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

DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423, followed

Foran v Wight (1989) 168 CLR 375, followed

Holland v Wiltshire [1954] HCA 42; (1954) 90 CLR 409, followed

Ireland v Leigh [1982] Qd R 145, followed

Mahoney v Lindsay (1980) 55 ALJR 118, followed

Mehmet v Benson [1965] HCA 18; (1965) 113 CLR 295, followed

Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235, followed

Rawson v Hobbs [1961] HCA 72; (1961) 107 CLR 466, followed

Spencer v Cali [1986] 2 Qd R 456, followed

Stephens v Coorey [1996] Q Conv R 54-469, distinguished

Sugden v Parker (1985) Q Conv R 54-199, referred to

Summers v The Commonwealth [1918] HCA 33; (1918) 25 CLR 144, followed

Tropical Traders Ltd v Goonan [1964] HCA 20; (1964) 111 CLR 41, followed