Perri v Coolangatta Investments Pty Ltd [1982] HCA 29

High Court of Australia Gibbs C.J. Stephen, Mason, Wilson and Brennan JJ. Perri v Coolangatta Investments Pty Ltd [1982] HCA 29

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 11 Gibbs C.J.

This is an appeal from a decision of the Supreme Court of New South Wales (Court of Appeal). The respondent company was the vendor, and the appellants were the purchasers, under a contract made on 7 April 1978 for the sale of land at Cronulla in New South Wales for a price of $220,000. The contract provided for payment of a deposit of $22,000 on the signing of the agreement but in fact the deposit had already been paid before the contract was signed. No time was fixed for completion of the sale, and the contract did not expressly provide that time was of the essence of the contract. Clause 6 of the special conditions of the contract provided as follows: "This Contract is entered into subject to Purchasers completing a sale of their property No. 9 Korokan Road, Lilli Pilli."

The appellants did not enter into a contract for the sale of their property at Lilli Pilli until 9 March 1979 and that contract was not completed until 13 June 1979. The learned trial judge in effect found that the appellants had not made reasonable endeavours to sell their property at an earlier date. He found that they had put the property on the market at a price that was too high and had acted unreasonably in not reducing the price to a reasonable level until January 1979. He did not make any finding as to the date on which a reasonable time for performance of special condition 6 expired, but he did find that a reasonable time had expired by 29 September 1978, when the present proceedings were commenced. Before that date the respondent had pressed the appellants to complete the contract, and had given them two notices to complete. The second of those notices was given on 17 July 1978, and required completion by 8 August 1978. When the sale had not been completed by that date the respondent on 10 August 1978 gave a notice rescinding or terminating the contract. The learned trial judge did not decide whether a reasonable time for completion had elapsed by 17 July 1978, or whether the respondent was entitled to give a notice to complete on that day, for he held that once a reasonable time for the fulfilment of special condition 6 had elapsed without that condition having been either fulfilled or waived, it was not necessary for the respondent to give a notice to complete. He accordingly declared that the contract had terminated on 29 September 1978 and ordered repayment to the appellants of the deposit. His decision was affirmed by the Court of Appeal.