Lavigne v Kumar [2020] NSWSC 1120

Supreme Court New South Wales

Medium Neutral Citation: Lavigne v Kumar [2020] NSWSC 1120 Hearing dates: 20-22 July 2020 Date of orders: 21 August 2020 Decision date: 21 August 2020 Jurisdiction: Equity Before: Darke J Decision: Contract for sale validly terminated by defendant. Plaintiffs' claim for specific performance dismissed. Defendant not entitled to recover deposit. Defendant entitled to possession of property, payment of outstanding rent, and mesne profits. Catchwords: LAND LAW – contract for the sale of land – validity of Notice to Complete – plaintiffs enter into Option Deed under which defendant grants an option to purchase – plaintiffs take immediate possession of the property in accordance with the Option Deed – plaintiffs exercise the option several years later – parties exchange settlement sheets claiming various amounts in addition to amounts payable under contract for sale – defendant issues Notice to Complete – whether defendant in a position to issue Notice to Complete – whether defendant ready, willing and able to perform – whether defendant adopting an unequivocal stance concerning amounts due on completion – whether defendant required to provide Occupation Certificate – Notice to Complete held to be valid LAND LAW – contract for the sale of land – termination of contract – where time of the essence for completion of contract – where defendant insisting upon payments at settlement pursuant to other contractual arrangements – where plaintiffs incorrectly maintain that defendant is required to provide Occupation Certificate prior to completion – completion does not occur – defendant terminates contract for sale – defendant claims entitled to terminate contract for plaintiffs' repudiation or alternatively pursuant to cl 12.7 of Option Deed – held that neither party ready, willing and able to complete – held that conduct of both parties amounted to repudiation – defendant able to terminate on account of plaintiffs' repudiation but not entitled to recover the deposit or sue for damages – no entitlement to terminate under cl 12.7 of Option Deed LAND LAW – contract for the sale of land – rescission – defendant contends contract validly rescinded under cl 7 of standard form contract – where cl 7 precludes certain claims by purchaser – plaintiffs make claim for cost of replacement of roof – whether a claim made under cl 7 – defendant gives notice of intention to rescind – plaintiffs waive claim under contract but continue to assert claim otherwise – held that plaintiffs' conduct viewed objectively does not show an intention to proceed under cl 7 – held that in any event claim was waived under cl 7 – held that waiver of claim under cl 7 does not amount to a waiver of claim at large – defendant not entitled to rescind LAND LAW – residential tenancy agreements – held that tenancy conferred under the Option Deed is a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010 (NSW) – held that defendant gave notice of termination such that periodic tenancy was terminated – defendant entitled to mesne profits Legislation Cited: Residential Tenancies Act 2010 (NSW), ss 8, 13 and 85 Cases Cited: Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd (2016) 18 BPR 35,759; [2016] NSWCA 32 Carne v Debono [1988] 1 WLR 1107 Carrapetta v Rado (2012) 16 BPR 30,997; [2012] NSWCA 202 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Falconer v Wilson [1973] 2 NSWLR 131 Frankcombe v Foster Investments Pty Ltd [1978] 2 NSWLR 41 Foran v Wight (1989) 168 CLR 385 Hudson v Arap 1 Pty Ltd [2015] NSWCA 126 McNally v Waitzer [1981] 1 NSWLR 294 Michael Realty Pty Ltd v Carr [1977] 1 NSWLR 553 Nassif v Caminer (2009) 74 NSWLR 276; [2009] NSWCA 45 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Oakglade Investments Ltd v Dhand [2012] EWCA Civ 286 Sharjade Pty Ltd v Commonwealth (2009) 15 BPR 28,443; [2009] NSWCA 373 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 Category: Principal judgment Parties: Jason Lavigne (First Plaintiff/First Cross-Defendant) Mia Lavigne (Second Plaintiff/Second Cross-Defendant) Somna Kumar (Defendant/Cross-Claimant) Representation: Counsel: Mr G A Sirtes SC with Mr B Le Plastrier (Plaintiffs/Cross-Defendants) Mr S Lawrance with Ms C Ernst (Defendant/Cross-Claimant)