The apparent unfamiliarity of a Sydney solicitor with Queensland conveyancing practice and a want of assertion by his local counterpart, have featured in a seller’s lawsuit to recover the re-sale loss on the September 2011 sale of a 2.68 ha rural property outside Toowoomba.
After a number of extensions acquiesced to or agreed to by the parties, the seller’s solicitors finally nominated 4 November 2011, as the date upon which it would require the buyer to present for completion.
When this date came and went, the buyer’s Macquarie Street solicitors – who did not front for the settlement – sent a notice terminating the contract on unspecified grounds of “default by the sellers”.
In April 2012, the sellers sued buyer Gregory Corby, in the Toowoomba District Court.
Neither Corby or his solicitors appeared at the summary judgment hearing. Their defence however, alleged there had been an un-initialled alteration to the reference schedule settlement date, from 10 October to 17 October.
This resulted – they claimed – in no binding contract at all; or at least in no settlement date having been agreed.
The issue had been first raised on 25 October when Corby’s Sydney solicitors expressed the view to the solicitors for sellers Stephen and Tanya Petersen, that it had been agreed settlement would be “two or possibly three weeks” after “exchange”.
“Exchange” is a feature of NSW conveyancing which is not part of Queensland practice.
Although the date alteration would probably not affect contract validity, His Honour thought the situation not one where the subsequent course of events and the buyer’s progress towards settlement could be interpreted, at summary judgement stage, as affirming its contract obligations.
Despite the four extensions of settlement date nominated by the sellers’ Toowoomba solicitors, Corby’s solicitors agreed to none. Their responses were perhaps, more consistent with NSW practice, where “time” is not usually “of the essence” as it is in Queensland.
“Given the particular correspondence between the parties”, the subsequent the actions on the part of Corby’s solicitors could not be said to clearly amount to “ratification or acquiescence” by the buyer, to the sellers’ proposed settlement dates.
On the other hand the Petersons had clearly not – by “each re-setting of the settlement date” – elected to waive Corby’s obligation to perform.
“It may be that the parties were simply working towards settlement at some stage in the future”, ventured His Honour.
He was reinforced in that view by the sellers’ solicitors not having “expressly remade time of the essence” on each occasion and not delivering a notice to complete on the last occasion.
Their correspondence to the Sydney solicitors after the last nominated settlement date had passed, for example, asked whether the buyer “intends terminating the contract”.
No notice of acceptance of the buyer’s repudiation was given by the seller, until the lawsuit which was filed in April 2012, completed the sellers’ termination.
“Resolution of this application requires – more than the construction of a contract between the parties – assessment of numerous developments and stutters” in the path to settlement. Any resulting breach if ultimately made out, was for a judge at trial to decide.
The seller’s claim for the difference between the sale price specified in the contract and its current value plus interest and resale costs, will proceed to trial in the coming months.