Tanwar Enterprises Pty Limited v Cauchi [2003] HCA 57

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

TANWAR ENTERPRISES PTY LIMITED APPELLANT

AND

JOSEPH CAUCHI & ORS RESPONDENTS

Tanwar Enterprises Pty Limited v Cauchi [2003] HCA 57

7 October 2003

S341/2002

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

F M Douglas QC with L J W Aitken and R C Scruby for the appellant (instructed by Alexander Lee & Associates)

I M Wales SC with M A Ashhurst for the respondents (instructed by Low Doherty & Stratford)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Tanwar Enterprises Pty Limited v Cauchi

Vendor and purchaser – Contracts for sale of land – Default by purchaser – Notice of termination – Supplemental deed requiring completion by stipulated date – Time of essence – Default by purchaser – Notice of termination – Purchase price available following day – Specific performance – Whether unconscientious for vendors to exercise right of termination – Whether relief on the ground of "accident" available in face of essential time stipulation.

Equity – Relief against forfeiture – Contracts for sale of land – Default by purchaser – Whether unconscientious for vendors to exercise right of termination – Whether default occasioned by "accident" – Whether relief on the ground of "accident" available in face of essential time stipulation.

1. GLEESON CJ, McHUGH, GUMMOW, HAYNE AND HEYDON JJ. This is an appeal from the New South Wales Court of Appeal (Handley and Beazley JJA, Mathews AJA)[1]. That Court dismissed an appeal by the present appellant ("Tanwar") from orders by a judge in the Equity Division of the Supreme Court (Windeyer J)[2] dismissing an application by Tanwar for specific performance of three contracts dated 19 October 1999 under which Tanwar was the purchaser. The subject-matter of the contracts was three adjoining parcels of land at Glenwood near Blacktown. Two of the parcels were owned by one or more of the first, second and third respondents, members of the Cauchi family, and the third by the fourth respondent, Julian Dalley. The vendor under the first contract was Joseph Cauchi. The vendors under the second were Joseph, Angelo and Mary Cauchi. The vendor under the third contract was Julian Dalley. The total purchase price was $4,502,526.90.