9.2 hold any other money paid by the purchaser under this contract as security for anything recoverable under this clause -
9.2.1 for 12 months after the termination; or
9.2.2 if the vendor commences proceedings under this clause within 12 months, until those proceedings are concluded; and
9.3 sue the purchaser either -
9.3.1 where the vendor has resold the property under a contract made within 12 months after the termination, to recover -
* the deficiency on resale (with credit for any of the deposit kept or recovered and after allowance for any capital gains tax or goods and services tax payable on anything recovered under this clause); and
* the reasonable costs and expenses arising out of the purchaser's non-compliance with this contract or the notice and of resale and any attempted resale; or
9.3.2 to recover damages for breach of contract."
38 In my opinion, in view of these contractual provisions, the Notice to Complete does not have to repeat them. Under clause 1 "terminate" means "terminate this contract for breach".
39 There is a helpful discussion of principle in the judgment of Gibbs J in Balog v Crestani (1975) 132 CLR 289 at 296 - 297. The notice in the present case was not ambiguous. It did not suggest that the contract would be kept on foot. The observations in Balog v Crestani have to be read in conjunction with clause 9 of the contract under consideration.
40 In my opinion, in the light of the terms of the instant contract, the Notice to Complete was not deficient.
41 By letter of 23 November 2007 by facsimile to the vendors' solicitor, the purchaser's solicitor sought a further period of up to 14 days in which to settle the purchase. By letter of 23 November 2007 by facsimile to the purchaser's solicitor, the vendors' solicitor replied that the vendors would agree to extend the expiration of the Notice to Complete at 3.00 pm on 28 November 2007 "on the condition that the balance of the 10% deposit is paid into the Real Estate's Trust Account by 5.00 pm on the 26th November 2007". That did not occur.
42 By letter of 27 November 2007 by facsimile to the purchaser's solicitor, the vendors' solicitor, after briefly referring to the contact and summarising clause 9, wrote:
"NOW THEREFORE you are hereby given notice that you are required to pay the balance of the deposit, i.e., $56,500.00 and that you have forfeited the deposit of $113,000.00 and all other moneys paid by you and that the said contract is entirely at an end so far as it relates to the sale and purchase of the said land and further that in pursuance of the hereinbefore recited Condition of Sale the Vendor shall proceed to resell the said land and will hold you responsible and liable as well for any deficiency in price as for all costs charges and expenses occasioned by such re-sale."
43 While clause 9.3.2 refers to recovering damages for breach of contract and that is set out in the recital of the terms of clause 9 of the contract, the notice does not state that damages for breach of contracts would be claimed. The entitlement to damages arises under the contract and the lack of mention of a claim for damages does not prevent such a claim being made.
44 The vendors additionally submitted that, even assuming Requisition 17A(e) was permissible, any answer could not relieve the purchaser of his obligation to complete because at the date of the contract the vendors' title was good and there was no defect in title: Carpenter v McGrath (1996) 40 NSWLR 39 at 41 (Clarke JA), 51C - 52F (Sheller JA) and at 68 - 69 (Cole JA). The vendors submitted that, at best, any answer given may have given the purchaser a right to sue for damages. I agree. Under the contract the right of the purchaser to make a claim has probably elapsed by effluxion of time. In Carpenter v McGrath at 54 - 55 Sheller JA referred with approval to Megarry and Wade, The Law of Property (1984) at 611 where the authors describe a good title as a title free from encumbrances, including statutory liabilities "if they are not merely potential or imposed on all property generally". Sheller JA noted that the authors continue:
"… but a statutory liability which first attaches to the property after the date of the contract must be borne by the purchaser (for the risk is on him) except to the extent that it is an outgoing which the vendor must meet as attributable to the period of his own occupancy, and except where it prevents the vendor from giving vacant possession on completion."
45 The council may have taken action if it considered that the unfenced pool was unsafe. Whether it would ever have done so is a moot point.
46 I do not think that the vendors were bound to disclose that they had sought a building certificate and had not received one.
47 The vendors put their claim on an alternative basis. They submitted that if the Notice to Complete was invalid the alleged repudiatory conduct of the vendors was not accepted and the vendors later terminated for the purchaser's repudiation.
48 About 21 January 2008 the purchaser's solicitor wrote to the vendors' solicitors that the vendors and the purchaser have agreed to complete the sale and the subject of their contract on the basis that the vendors receive $1,350,000 in full settlement of their claims and that the purchaser wanted to settle the purchase as soon as the purchaser's funds became available. Mr Lyons, in his oral evidence, confirmed that he still wanted to buy the property but he still did not have the money to do so. A deed was envisaged.
49 As the original purchase price was $1,300,000, the purchaser's proposition involved the vendors being paid an extra $50,000. The vendors' solicitor replied (on 22 January 2008) that, subject to written confirmation that the funds were available, the vendors agreed in principle to terms set out in the letter of 21 January 2008 from the purchaser's solicitor.
50 The vendors' solicitor, by a separate letter on 22 January 2008, further advised that the vendors required the matter to be finalised by 29 January 2008.
51 By letter of 30 January 2008, the purchaser's solicitor submitted a draft deed. By letter of 1 February 2008 by facsimile the vendors required a firm completion date to be inserted, namely at 3.00 pm on 4 February 2008 at a nominated venue. In a further letter of 1 February 2008 to the purchaser's solicitor, the vendors' solicitor advised that, should the matter not be completed as set out in their earlier letter (fax), the property will be listed for sale on 6 February 2008 and proceedings would be commenced for the recovery of costs and damages. The vendors' solicitor wrote again to the purchaser's solicitor on 22 and 28 February 2008. The letters were headed "without prejudice".
52 The purchase was not completed and the settlement did not eventuate. The funds had not come through.
53 Mr Lyons agreed in cross-examination that at no stage until these legal proceedings actually came on did he ever tell the purchasers that the contract was off. Nor did he tell his solicitor to so advise the vendors. Mr Lyons agreed that he never told the vendors that he wanted the deposit back. He agreed that he told Mr Wood that he could not let him have the deposit because his solicitor said not to do so. He wanted to let the vendors have the deposit paid.
54 The vendors submitted that: