Payne v Timilty [2021] NSWSC 986

Supreme Court New South Wales

Medium Neutral Citation: Payne v Timilty [2021] NSWSC 986 Hearing dates: 5 August 2021 Date of orders: 6 August 2021 Decision date: 06 August 2021 Jurisdiction: Equity Before: Darke J Decision: Summons dismissed with costs. Catchwords: CONTRACTS – construction and interpretation of contracts – parties entered into Deed of Put and Call Option in respect of property owned by defendants – Deed defined Call Option Expiry Date as 5.00pm on 24 April 2021 unless contrary intention appears – form of contract annexed to Deed – Clause 21.5 of the form of contract stipulated that if the time for something to be done is not a business day, the time is extended to the next business day – 24 April 2021 was not a business day as defined in form of contract – whether clause 21.5 evinces a contrary intention that warrants departure from the defined meaning of Call Option Expiry Date – held that ordinary businesspeople would understand that the terms of the form of contract would operate only if either the call option or put option was exercised – held that on the true construction of the Deed the Call Option Expiry Date was 5.00pm on 24 April 2021 – plaintiffs in any event failed to pay deposit by cheque as required by the Deed – held that plaintiffs failed to validly exercise call option Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Coplin v Al Maha Pty Ltd (2019) 19 BPR 39,485; [2019] NSWCA 159 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Hagerty v Hills Central Pty Ltd (2018) 19 BPR 38,853; [2018] NSWCA 200 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Category: Principal judgment Parties: Stuart John Payne (First Plaintiff) Kerrie Ann Payne (Second Plaintiff) Stephen John Timilty (First Defendant) Kathryn Jane Timilty (Second Defendant) Representation: Counsel: Mr A J Sullivan QC and Mr J A Trebeck (Plaintiffs) Mr S Docker and Ms L Cooper-Hackman (Defendants)