Ground 2 (Misconstruction of clause 28.2)
59 The appellant submits that Bryson J misconstrued cl 28.2 by holding him responsible for the defaults of his independent contractors.
60 Bryson J (at [9]-[14]) discusses a number of earlier decisions relating to clauses having a similar function to cl 28 of the 2000 addition, but expressed in general or different terms. There are, or have been, some points of disagreement between judges in the Equity Division as to whether and in what circumstances delays in performance attributable to the defaults of contractors retained by the vendor were automatically attributed to the vendor in the context of general principles disentitling a contracting party from taking advantage of his or her own default.
61 Bryson J held that these issues did not arise with the sharply drawn terms of cl 28 in the present case. He said:
It will be seen that under cl 28.2 it is a contractual obligation of the vendor, expressed in imperative terms, to do everything reasonable to have the plan registered within six months. The effect of this is that if some step is reasonable and is necessary for registration within six months the vendor must take that step; the obligation is not that the vendor must do everything reasonable to take the step. The vendor's personal circumstances, knowledge of or ignorance of what is required, reliance on servants, agents or independent contractors, and the skill, knowledge and assiduity of any such agents are all irrelevant to the vendor's obligations; if a step is reasonable, the vendor must take it. My view of the meaning of cl 28.2 is produced by the express terms of the clause, and is reinforced by the consideration that if cl 28.2 is complied with, compliance can work adversely to the purchaser, who has no control over or influence on what the vendor does, or on the vendor's selection of courses to follow or selection of servants agents or contractors, and has no control over the conduct or effectiveness of any such agents, but is bound by the vendor's decision if the vendor rescinds after compliance. The only protection the purchaser has against rescission is the stringency of the condition which the vendor must fulfil if he is to have a right to rescind. It would be inconsistent not only with the express terms of cl 28.2 but also with the purpose of cl 28 as a whole if inefficient or ineffective measures by the vendor or someone by whom the vendor acted could contribute to the vendor's gaining a right to rescind.
62 At [14] his Honour pointed to differences between the language of cl 28.3.2 and that used in the contracts discussed in some of the earlier cases. He continued:
14. … The qualification relating to delay attributable to independent contractors was treated by Young J [in Woodcock v Parlby Investments Pty Ltd (1988) 4 BPR 9568] and by McLelland CJ in Eq [in Plumor Pty Ltd v Handley (1996) 41 NSWLR 30] as available where the obligation of the vendor which is qualified rested on general principle: in my opinion there is no room for the general principle or the qualification to operate where the parties' agreement expressly and explicitly states what the vendor's obligation is. Clause 28.2 is in very similar terms, although not identical with printed cl A6.1 under consideration in Hawes v Cuzeno Pty Ltd [(1999) 10 BPR 18,011] . In my respectful opinion it is even clearer in relation to cl 28 including cl 28.3.2 than it was in relation to cl A.6 of the earlier standard form that it is the vendor's obligation to do everything reasonable to have the plan registered, and if that obligation is not complied with the vendor is not excused by showing that the non-compliance arises from some failure of an independent contractor. The principle in Woodcock v Parlby Investments has been regarded as involving an exemption in respect of failure of some person other than the vendor himself. It is not that principle which applies in the present case but the plainly expressed meaning of cl 28, doing everything reasonable to have the plan registered is something which the vendor has expressly promised to do and must do, and he must do it whether he does it himself or by the agency of someone else.
63 I respectfully agree.
64 The appellant submitted that Bryson J's interpretation of cl 28.2, which effectively imposed a non-delegable obligation on the vendor, was unreasonable. This in my view misconstrues the judge's approach to cl 28.2. That clause is in the nature of a condition which imposes on the vendor an obligation "to do everything reasonable to have the plan registered" within the time stated. The vendor's conditional right to rescind is available "only if the vendor has complied with cl 28.3".
65 It is further submitted that the reasoning of Hodgson CJ in Eq in Masters v Belpate Pty Ltd [2001] NSWSC 169, 10 BPR 18-527 ought to be preferred to that of Bryson J in the present case and in Hawes. Hodgson CJ in Eq was critical of some of Bryson J's reasoning in Hawes. Bryson J acknowledged the criticism in the judgment under appeal, while firmly adhering to his own views on the general principle.
66 It is unnecessary to resolve these differences of opinion which are to be found in obiter discussion in the three cases. That is because Masters and the discussion in it of the then Chief Judge in Equity did not involve cl 28.2 or any similar provision.
67 It is not helpful to debate whether or not cl 28.2 as construed by Bryson J and myself is unreasonable in its operation. I do not think it is. More to the point, neither did the parties when they adhered to its clearly expressed terms.