Sandpiper Kooragang Pty Ltd v Fortis Products Pty Ltd [2020] NSWSC 1256

Supreme Court New South Wales

Medium Neutral Citation: Sandpiper Kooragang Pty Ltd v Fortis Products Pty Ltd [2020] NSWSC 1256 Hearing dates: 1-2 September 2020 Date of orders: 15 September 2020 Decision date: 15 September 2020 Jurisdiction: Equity Before: Darke J Decision: Defendant's termination of the contract held to be ineffective. Orders to be made for specific performance of the contract and damages in addition. Catchwords: LAND LAW – contract for the sale of land – validity of Notice to Complete – parties enter into contract upon exercise of call option granted by defendant – plaintiff nominated as purchaser under terms of the call option – defendant sends land tax certificate to plaintiff showing land tax charge – completion does not occur on contractual date for completion – defendant issues Notice to Complete – whether defendant in position to issue Notice to Complete – where plaintiff claims defendant in default of agreement for breach of warranty prescribed under the Conveyancing (Sale of Land) Regulation 2017 – plaintiff further claims that defendant not ready, willing and able to proceed to completion where not in a position to issue clear land tax certificate – held that prescribed warranty did not form part of contract – held that in any event a breach of this kind has no relevant bearing upon obligations to complete – held that defendant was in a position to obtain a clear land tax certificate by the time fixed for completion – Notice to Complete held to be valid LAND LAW – contract for the sale of land – termination – validity of termination – on day fixed for completion parties continue to exchange documents including settlement figures – solicitor for plaintiff requests that clear land tax certificate be provided on completion – solicitor for defendant states that land tax will be paid from settlement proceeds – completion does not occur – defendant issues Notice of Termination – not in dispute that plaintiff not ready, willing and able to complete – whether defendant validly terminated contract – held that defendant not ready, willing and able to complete because not in a position to provide a clear land tax certificate on completion – termination held to be ineffective Legislation Cited: Conveyancing Act 1919 (NSW), ss 52A Conveyancing (Sale of Land) Regulation 2017 (NSW), cll 9, 11, 17; Sch 1, Sch 3, Sch 4 Land Tax Management Act 1956 (NSW), s 47 Supreme Court Act 1970 (NSW), s 68 Cases Cited: Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd (2016) 18 BPR 35,759; [2016] NSWCA 32 Carrapetta v Rado (2012) 16 BPR 30,997; [2012] NSWCA 202 Collingridge v Sontor (1997) 141 FLR 440 Falconer v Wilson [1973] 2 NSWLR 131 Frankcombe v Foster Investments Pty Ltd [1978] 2 NSWLR 41 HG & R Securities Pty Ltd v Sayer [2009] NSWSC 427 Jeppesons Road Pty Ltd v Di Domenico [2005] QCA 391 K & K Real Estate Pty Ltd v Adellos Pty Ltd (in liquidation) [2010] NSWSC 1212 McNally v Waitzer [1981] 1 NSWLR 294 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Lavery v Nelson (1983) 3 BPR 9211 Michael Realty Pty Ltd v Carr [1977] 1 NSWLR 553 Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235 Raphael Shin Enterprises Pty Ltd v Waterpoint Shepherds Bay Pty Ltd [2014] NSWSC 743 Sharjade Pty Ltd v Commonwealth (2009) 15 BPR 28,443; [2009] NSWCA 373 Szanto v Bainton [2011] NSWSC 278 Wilde v Anstee (1999) 48 NSWLR 387 Category: Principal judgment Parties: Sandpiper Kooragang Pty Ltd atf Sandpiper Property Trust (Plaintiff) Fortis Products Pty Ltd (Defendant) Representation: Counsel: Mr A Harding (Plaintiff) Mr B DeBuse (Defendant)