24 The silence of the parties after 23 July is in some respects remarkable although it may be explicable on the basis that they were then negotiating for a sale of the land. Certainly the evidence does not persuade me that the agreement for the sale of shares was then abandoned by either. The letter of 16 September from the vendors prevents any conclusion that they intended to abandon the contract at that time. The continuation of negotiations for the sale of the land or the exchange of contracts in that connection, together with the apparent absence of reference to the share sale agreement leads me to the view that agreement remained extant until at least the letter of 21 October.
25 That letter, while clearly an implied assertion by the vendors that the agreement for the sale of shares remained on foot, suffered from a number of deficiencies. It is doubtful whether its wording was sufficient to make time of the essence but in any event the time allowed - only 8 days until 29 October - was too short to be effective in a contract involving the purchasers in having to pay some millions of dollars, some of which was apparently to be borrowed. Clause 7(b)(iv) of the Agreement in its reference to "within 14 days" cannot mean any period less than 14 days, so the time allowed did not even comply with the terms of the Agreement. Accordingly, it is unnecessary for me to consider whether at the time that letter was sent, the vendors were sufficiently free of default to entitle them to send the letter.
26 The next significant event was the communication from Mr Maganini of 28 October to the effect that Zantown would not be able to settle at all. That, at least so far as Zantown was concerned, was a repudiation of the agreement - see Harold Wood Brick Co Ltd v Ferris (1935) 2 KB 198 at 205-206; Thorpe v Fasey (1949) 1 Ch 649 at 660.
27 Had Zantown been the only purchaser that would have entitled the vendors to rescind for anticipatory breach. However, Zantown was not the only purchaser and as rescission for anticipatory breach requires the assent of all parties to a contract - see Lion White Lead Ltd v Rogers (1918) 25 CLR 533 at 551 - and I am not persuaded there was any such agreement by Kenoss, the agreement remained on foot. In this connection it is appropriate to refer to the difference in terminology between the terminology attributed to Mr Maganini, "my client" and the plural used in Mr Gallagher's purportedly confirmatory conversations. The difference was not the subject of exploration during the hearing and, although the absence of any response to the letter from Mr Gallagher to Gillespie and Co provides evidence that Kenoss might have been suffering the same inability to complete, I do not believe that I should not prefer the account of the conversation to which Mr Gallagher deposed. Kells did not generally speak for Kenoss and repudiation is not to be lightly inferred.
28 For a number of reasons the notice of 14 December 2004 was inadequate to change this situation. In the first place, the vendors had been unable to complete on 23 July: In that situation, and not being excused by any conduct of the purchasers, the vendors could not rescind for the purchasers' failure to complete on that day - Foran v Wight (1989) 168 CLR 385. Secondly, the vendors in their letter of 21 October had maintained the continuation of the contract, a course inconsistent with maintenance of their right to rescind for an event as long ago as 23 July. Thirdly, the 14 December notice was in its terms one by Crownview Developments Pty Ltd. While that company was the company whose shares were the subject of the agreement of 28 May, the company was not itself a party to the agreement and not a person who had any rights in relation to the agreement. Nor is it possible to regard the notice as one from the Plaintiffs. It was not expressed to be such, nor is there any evidence that Crownview Developments was acting as agent for all or any of the Plaintiffs.
29 The matters following the reference "Thirdly" in the immediately preceding paragraph means also that the 14 December notice was not a repudiation by the Plaintiffs and was not capable of supporting the purported rescission by Kenoss in its notice of 1 March 2006. That notice also does not reflect any agreement by Zantown in the rescission and, there being no other evidence of Zantown's agreement in the course Kenoss then sought to adopt, there is much to be said, in accordance with Lion White Lead Ltd v Rogers, that there is a further ground for rejecting the notice of 1 March as effective to achieve what it purported to do.
30 I turn then to the effect of the proceedings in which this judgement is written. The Statement of Claim alleges default of the Defendants in "fail(ure) to complete the contract", the termination of the agreement on 14 December 2004 (presumably in consequence of specified default and the notice of that date), seeks forfeiture of the deposit, and claims moneys payable under the contract and damages.
31 I have indicated that I do not regard that notice as having the effect contended for and that the Plaintiffs cannot complain of the Defendant's failure to complete on 23 July. The Plaintiff's never took appropriate steps to require completion by the Defendants at any other time prior to the commencement of proceedings so the claim as formulated in the Statement of Claim fails. As I have said, so does the Defendants' contention that the 14 December notice was a repudiation that they accepted.
32 However when one looks at the history to which I have referred, it is clear that the Share Sale Agreement has been abandoned by both sides to it. That conclusion is reinforced by evidence or concessions made during the course of submissions on damages that on and after 1 September 2006, Crownview Developments entered a contract (later varied) to sell the land at 2 Parkinson Avenue and 373 Crown St, Wollongong, it being clear that the ownership of that land by Crownview Developments was a matter that was fundamental to the Share Sale Agreement.
33 Abandonment was argued and it is sufficiently within the assertion in the Cross-Claim that the "Cross-Defendants have no current entitlement to the deposit monies" for me to make a decision on it. Payment of the deposit monies by the Zantown is conceded and the contention just quoted is made out.
34 There was also a claim for interest on the deposit monies from 14 December 2004 pursuant to s100 of the Civil Procedure Act. Prima facie the Second Defendant would seem entitled to some interest but given the conclusions at which I have arrived, I am disposed to the view that it should not be from as early as 14 December 2004. There was no alternate date suggested. Furthermore, it may well be that there have been dealings by agreement of the parties with the deposit monies while they have been held by the Third Defendants that affect the rate of interest. The parties should have an opportunity of dealing with this topic further in the near future.
35 Accordingly, the orders that seem to me appropriate are:-
(i) Verdict and judgment for the Defendants on the Plaintiffs' claim.
(ii) Order that the Third Defendant pay to the Second Defendant the sum of $255,050.
(iii) Stand over the topic of interest until ….
(iv) Order the Plaintiffs to pay the Defendants' costs of the proceedings, including proceedings on the Cross-Claim.
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