Three hours before a proposed settlement a seller’s solicitor calls his counterpart opposite to be told the latter’s clients were “not in a position to settle” and then, in relation to an extension proposal, “we’ll let you know when our clients give further instructions”.

That’s the scenario against which solicitors for sellers Anthony Rigby and David Bolton claim they did not bother finalising settlement arrangements in October 2012, because to do so – they reckoned – would have been completely futile in such circumstances where the buyer’s solicitors had already conveyed their clients’ “anticipatory breach”.

They were then, perhaps surprised when buyers Ricky and Jane Dunn – who signed up to the $300k off-the-plan apartment deal in February 2012 – relied upon that failure to purport to terminate the contract and recover the deposit.

It was upon the complexion of these facts that the District Court – on application by the sellers for a declaration that they had validly terminated the Gold Coast contract and were entitled to damages and forfeiture of the deposit – was asked to adjudicate in Friday’s ruling.

In the buyers’ favour had been a number of delays on the part of the sellers’ solicitors in responding to correspondence and providing the signed transfer to their opposite numbers for stamping. They had the purchase funds in their solicitor’s trust account and were ready to settle as required.

The seller’s side appears to have taken a somewhat leisurely approach to specifying a settlement venue and negotiating settlement adjustments but claimed a settlement could have been put together and clear title provided at any reasonable location had the buyers notified they were able to complete on the appointed day.

So which of the “reluctant” protagonists should be held to be in breach?

As a preliminary view, his honour thought a statement that a party was “not in a position to settle” was not necessarily an indication that the party was “not ready willing and able to settle”. This was particularly so in the subject case “given the hour and the fact that no specific arrangements had been made to settlement that day”.

Most likely, said the court, the solicitor was merely saying that in the absence of reasonable notice, “it was too late to seek to make such arrangements” for a settlement that day.

Ultimately however given the gaps in the affidavit accounts and the absence of expert evidence as to contemporary conveyancing practice, the court could not decide either way. Although the QLS conveyancing protocol was put before his honour, he was not satisfied that it necessarily represented the accepted norms of solicitors acting for buyers and sellers.

Directions were given as to the further conduct of the matter leading to a trial which will allow further evidence of conversations etc as well as the expert evidence that his honour foreshadowed would be appropriate.

Rigby v Dunn [2013] QDC 130 Brisbane McGill SC DCJ 14/06/2013