HODGEKISS v ZADRO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and PRIESTLEY JJA 13 December 1989, 21 December 1989 [1989] NSWCA 245 LAND -conveyancing practice — anti-gazumping legislation — validity of form of preliminary agreement — whether valid — whether complied with by purchaser — whether trial judge justified in refusing to order specific performance — held: (1) The Court would assume, without deciding, that the preliminary agreement produced enforceable rights and duties in the vendor and purchaser. Molodysky v Vema Australia Pty Limited (1989) NSW Conv R55-446; Sloane and Anor v McDonald Industries (Sales) Pty Ltd (1989) NSW Conv R55-470; Shoard v Palmer and General Credits Limited, Court of Appeal, unreported, 21 December 1989 referred to; Hodgekiss v Zadro (1989) NSW Conv R55-471 affirmed. STATUTES - construction - inconsistency between legislative provision contemplating a prescribed form and the provisions of such form - form held to be invalid - consequences of - whether effect should nonetheless be given to the signature by the parties of the prescribed form - held: Having regard to the terms of the preliminary agreement and discretionary considerations which sustained the orders at first instance, it was not necessary for the Court of Appeal to express an opinion on the validity of the form or the other grounds upon which its provisions might be enforced. Sloane and Anor v McDonald Industries (Sales) Pty Ltd (1989) NSW Conv R 55-470; Tokyo Mart Pty Ltd v Campbell (1989) 15 NSWLR 275; Bermingham v Corrective Services Commission of New South Wales (1989) 15 NSWLR 292 referred to. LAW REFORM - conveyancing - invalidity of form of preliminary agreement - inconsistency of form as prescribed and statutory requirements of the form - suggestion by Kirby P of the need to give urgent attention to the issue either by legislation or by revision of the prescribed form Sloane and Anor v McDonald Industries (Sales) Pty Ltd (1989) NSW Conv R55-470 referred to. Conveyancing Act 1919, s66Q, s66W, s202. Conveyancing (Amendment) Act 1987, s3. Kirby P Before the Court are two appeals. The first, by Mrs Sandra Hodgekiss arises from a judgment given by Waddell CJ in Eq on 15 June 1989. By that judgment, his Honour dismissed Mrs Hodgekiss's claim to enforce a "preliminary agreement" made with Mr Fermino Zadro (the respondent) for the sale by him of a house property known as 38 Woodside Avenue, Strathfield. The associated appeal by Mr Hodgekiss, who is a barrister of the Court and the husband of Mrs Hodgekiss, arises from a decision of Waddell CJ in Eq on 16 August 1989 by which his Honour declared that the respondent was entitled to possession of the said property; ordered that he have leave to issue forthwith a writ of possession and ordered that Mr Hodgekiss pay to the respondent, by way of mesne profits, $1,000 per fortnight. The issues raised by the two appeals are common. Because the appellants are in possession and the respondent seeks immediate ejectment so that he can resume possession himself - and because an issue of importance for conveyancing law and practice in New South Wales was said to be raised - the 2 UNREPORTED JUDGMENTS Court ordered the expedition of the hearing of the appeals. By consent, they were heard together. It was agreed that if the appeal in Mrs Hodgekiss's case should fail, the same fate must await the appeal by her husband, so that the order for ejectment would then be confirmed. Defects in anti-gazumping law The practice of gazumping has lately engaged law reform bodies and Parliaments in several jurisdictions, especially because of the cost, disappointment and inconvenience caused by the practice to purchasers or vendors of real estate. In an attempt to meet the problem in this State the New South Wales Parliament in 1987 inserted in the Conveyancing Act 1919 (the Act), Division 8 of Pt4 containing the sections from s66P to s66Y. See Conveyancing (Amendment) Act 1987, s3. In the way in which these appeals developed, it is unnecessary to enter into a detailed analysis of the history, purpose and meaning of those legislative provisions. Suffice it to say, that by s66Q it is required that before entering into a contract for the sale of a residential property, the vendor must enter into a "preliminary agreement" with the purchaser. By that section, the "preliminary agreement" must be "in the prescribed form; and (have) annexed to it a copy of the proposed contract as referred to in the preliminary agreement". An interesting question, of undoubted importance to conveyancing practice has arisen from a series of decisions of judges at first instance concerning the form which has in fact been prescribed in purported fulfilment of the requirement contemplated by s66Q. That form was prescribed on | June 1988, and the provisions of Division 8 came into force on that day. It may therefore be inferred that the intention of those responsible for the introduction of the legislation was to co-ordinate the introduction of the requirement for a preliminary agreement and the provision of the "prescribed form" to fulfil that requirement. Having regard to a comparison between the matters contained in the "prescribed form" and the requirements as to what the "preliminary agreement prescribed must include" by s66W of the Act, doubt was first expressed by Cohen J as to whether the form was consistent with the requirements of the Act. See Molodysky v Vema Australia Pty Limited (1989) NSW Conv R55-446 at 58, 233. Having raised the doubt, his Honour did not resolve it in that case. But soon afterwards the issue was raised directly before Cole J in Sloane and Anor v McDonald Industries (Sales) Pty Ltd (1989) NSW Conv R 55-470. His Honour examined the provisions of Division 8 of the Conveyancing Act and of s202 of that Act by which regulations may be made prescribing forms, the provisions of the form in fact prescribed and the requirements of the Interpretation Act 1987, especially s32. From this examination, Cole J concluded at 58, 424 that: "the form of preliminary agreement presently in use in New South Wales does not comply with the requirements of s66W(1) of the Conveyancing Act... There is no validly prescribed form. Thus, s66Q cannot be complied with. With the present prescribed preliminary agreement, the "anti-gazumping" provisions of the Conveyancing Act are inoperative and ineffective because the preliminary agreement prescribed is ultra vires s66W, and the ultra vires portions of the preliminary agreement cannot be severed". In the present case Waddell CJ in Eq followed the holding of Cole J in Sloane. The respondent supported this conclusion. The appellants, whilst not conceding that s66Q could not be complied with, did not contest before this Court the correctness of Cole J's conclusion that the presently prescribed form did not conform to s66W of the Act. They sought, however, on various bases to uphold the validity of the "preliminary agreement", notwithstanding the non-compliance URJ HODGEKISS v ZADRO (Kirby P) 3 of the form, in certain respects, with the Act. Recent decisions of the Court show the way in which apparent lacunae or mistakes in legislation can sometimes be cured by the techniques of judicial interpretation. See eg Tokyo Mart Pty Ltd v Campbell (1989) 15 NSWLR 275 and Bermingham v Corrective Services Commission of New South Wales (1989) 15 NSWLR 292. Other decisions suggest a way in which parties who adopt a form sanctioned by statute may sometimes be taken, as between themselves, to be bound by the statutory provisions (or some of them) where they would not be caught by the statute itself. See eg Shoard v Palmer and General Credits Limited, Court of Appeal, unreported, 21 December 1989. Such arguments raise important questions for the validity of present conveyancing practice in New South Wales, as solicitors and parties strive to comply with the Act in the face of the doubt expressed in Molodysky and the decision in Sloane, affirmed by Waddell CJ in Eq in Mrs Hodgekiss's case. In the approach which I take to the appeals, it is not necessary to resolve these questions, important and interesting though they may be. It is undesirable that opinions should be expressed on such points, unless necessary for the resolution of the appeals. In my view they are not. It is especially undesirable that opinions should be expressed for in this case no party sought to contest the construction of the Act given by Cole J in Sloane and adopted by Waddell CJ in Eq in this case. Thus there was therefore no refinement, by contested argument, of the issue for the opinion of this Court. In any case, it is not essential that the Court should express its opinion on the point. Legislation to amend the Conveyancing Act in respect of the subject Part dealing with gazumping is presently before Parliament. Even if the passage of that legislation presently appears uncertain (because of reported opposition to the amendments in the Legislative Council) it is a relatively simple matter for the Executive Government to cure the problem exposed by Cole J in Sloane and by Waddell CJ in Eq in this case. This it can do by prescribing a new form of preliminary agreement which incontestably conforms to s66W and the other provisions of the Act and meets the objections expressed about the present form successively by Cohen J, Cole J and Waddell CJ in Eq. Obviously, it would be desirable that the uncertainty concerning the operation of the Act, the validity of the prescribed form and the consequences of its suggested invalidity, should be removed as quickly as possible, either by legislation or by the Executive. A preliminary agreement fails I say that the appeals can be disposed of without determining these questions because the order of Waddell CJ in Mrs Hodgekiss's case can readily be sustained upon the basis that his Honour's refusal to order specific performance of the preliminary agreement is more than amply justified in the exercise of his discretion in disposing of the claim for equitable relief upon the facts proved. Furthermore, even assuming that the preliminary agreement relied upon by the appellants is valid and enforceable, either by the Act or as between the parties, an examination of the evidence and of the conduct in particular of the appellants, sustains the conclusion that the preliminary agreement had expired so that specific performance of it, or of the contract of sale to which it was preliminary, should not be ordered. To demonstrate these conclusions it is necessary to set out some of the facts of the transaction between the parties. In June 1986, Mr and Mrs Hodgekiss entered into a residential lease of the subject premises at Strathfield. Early in November 1988 they agreed with the respondent to purchase the property for $600,000. However, as it is not at all unusual in these transactions, the respondent needed 4 UNREPORTED JUDGMENTS to be assured of the receipt of the moneys in settlement of the purchase by a specified date because of other transactions in which he was consequentially involved. He made this need known to the appellants. He stressed that he insisted upon settlement by 15 December 1988. In purported compliance with the requirements of Division 8 of the Act, a preliminary agreement in the prescribed form was then prepared. On 10 November 1988 the respondent's solicitor (Mr Collins) sent the proposed preliminary agreement to the solicitor acting for the appellants (Mr Kay). On 15 November 1988 Mr Kay requested copy of a survey. This was provided by a letter of 16 November 1988. On 25 November 1988 the preliminary agreement was signed by Mrs Hodgekiss. It was then sent to Mr Kay. On 28 November 1988, Mr Kay sent the signed copy of the preliminary agreement, together with the preliminary deposit being 0.1% of the purchase price ie $600, to the solicitor for the respondent. The following day, on 29 November 1988 the respondent signed the preliminary agreement. Meanwhile, on 28 November 1988, according to an affidavit read before Waddell CJ in Eq, the solicitor for the respondent received a telephone call from Mr Kay. According to the evidence, not relevantly contested, the following conversation took place: "MR KAY: I am having the signed Preliminary Agreement couriered to you today. We do have a problem, however, in that we don't know at this stage who will be the Purchaser to actually enter into the Contract. Will it be OK with you to get Mrs Hodgekiss to sign the Preliminary Agreement and insert her name or nominee therein? MR COLLINS: I will get instructions but I do not think that my client would raise any objection to that. MR KAY: Fine, if everything is OK can you get your client to approve and sign the Preliminary Agreement and let me have that and the engrossed Contract back at the same time as we want to get moving as soon as possible to meet the contractual deadline. I shall of course, let you know the name of the Purchaser to go into the Contract as soon as I know." The reference to the "contractual deadline" was a reference to 15 December 1988 which at all times the respondent had made plain was to be the final date for settlement. As appears from other evidence, the reference to the insertion of a nominee for Mrs Hodgekiss arose out of efforts by Mr Hodgekiss, on his wife's behalf, to raise moneys overseas to fund the purchase. Difficulties and delays arose in finalising those arrangements and a question of doubt also arose concerning whether a purchase by a nominee, specified by an overseas financial institution for the purchase of residential property in Australia, would require approval of the Australian Treasury in accordance with then recently amended rules governing the operations of the Foreign Investments Review Board. In accordance with the request of Mr Kay, Mr Collins on 29 November 1988 proffered the preliminary agreement duly signed by the respondent. Having regard to the request, no reference was made to the purchaser's name in the contract appended to the preliminary agreement. This was left in blank, upon the assumption that Mrs Hodgekiss would either then enter her own name in the contract or would enter the name of her nominee, as required by her own interests. As had been made plain, this was not a matter of concern to the respondent. It was of particular concern only to the Hodgekiss interests. URJ HODGEKISS v ZADRO (Kirby P) 5 It is now necessary to say something about the conditions contained in the preliminary agreement entered between the parties. Only five provisions need be noticed: What the vendor must do 3. Once the vendor and purchaser become bound by this Preliminary Agreement the vendor must serve a copy of the Contract of Sale on the purchaser. The vendor has 5 business days in which to do this but the purchaser can agree to give the vendor more time. The Contract of Sale must be the same as the one attached to this Preliminary Agreement with the name and address of the vendor and purchaser and the price filled in. The Contract of Sale may be changed but only if both vendor and purchaser agree. What the purchaser may do 4. Once the vendor serves the Contract of Sale on the purchaser, the purchaser may offer to enter into the Contract of Sale. Unless the purchaser does this within 5 business days after the Contract of Sale is served, this Preliminary Agreement will expire and the purchaser will lose the preliminary deposit (see condition 7). The vendor can agree to give the purchaser more time and must not prevent the purchaser from entering into the Contract of Sale. What the vendor must do if the purchaser offers to enter into the Contract of Sale 5. If the purchaser offers to enter into the Contract of Sale within the period allowed under condition 4, the vendor must do so no later than on the next business day after the end of that period or on a later day agreed to by the purchaser. Expiry of Preliminary Agreement 7. If the purchaser does not enter into the Contract of Sale in accordance with condition 4, this Preliminary Agreement expires. The preliminary deposit is then forfeited to the vendor and the vendor has no further obligations under this Preliminary Agreement. No change to Preliminary Aqreement allowed 9. Any provision of any contract, agreement or arrangement to exclude, modify or restrict any provision of this Preliminary Agreement is void and of no effect. On the 30th November 1988, the preliminary agreement as signed by the respondent was served on Mrs Hodgekiss's solicitor. Having been signed by the respondent on 29 November 1988, it became binding on the parties on that day. The 5 business days provided in condition 5 of the preliminary agreement began to run. However, on 7 December 1988, Mr Collins (according to his affidavit) received a further telephone call from Mr Kay. The following conversation then took place: MR KAY: You are probably not aware that my client is a Member of the Bar and when I gave him the Contract to take home for his wife's signature he observed that the Purchaser's name as set out in the Preliminary Agreement had not been filled in. He is concerned that some doubt could be raised on the legality of the transaction if the Contract as served is exchanged. MR COLLINS: He is really nitpicking isn't he? You must be aware that I only left the name out following our discussion and by way of assistance to you. MR KAY: Yes, I fully appreciate your position and I am sorry but you have to appreciate that Barristers can be difficult clients and he tells me that he does not want to risk doing anything that can be construed as a breach of what we all agree is very confusing legislation. Can you serve another Contract on us to overcome the problem and to evidence our good faith we will be happy to pay the courier fee. My client will then be happy and he can get his wife to sign the Contract straight away as we don't want any further delay. 6 UNREPORTED JUDGMENTS MR COLLINS: Alright on these assurances I will have a re-engrossed Contract served on you tomorrow morning. I shall also get my client to sign his copy so that it is available for exchange... whenever you are ready." Pursuant to this conversation, Mr Kay confirmed Mr Hodgekiss's concern in a letter to Mr Collins of 7 December 1988. On 8 December 1988 Mr Collins, referring to the telephone conversation, sent Mr Kay "counter-part copy of re-engrossment of the Contract of Sale incorporating the purchaser's particulars as disclosed in the preliminary agreement for your client's execution and completion of a formal exchange." On 13 December 1988 Mr Collins wrote to Mr Kay appointing 15 December 1988 for completion. That was the date which appeared in the first schedule to the contract for the sale of the subject land. It appeared both in the first copy omitting the identification of the purchaser, sent on 30 November 1988. It also appeared in the re-engrossment which contained the purchaser's particulars served on 8 December 1988. On 13 December 1988 Mr Collins appointed the specified day, 15 December 1988 for completion. However, completion did not take place on that day. It appears from the evidence that the finance for which Mrs Hodgekiss was awaiting was not available to her by that day. By a letter of her solicitor of 16 December 1988 three reasons were given which had "made settlement on 15 December 1988 impossible". These were, in summary, the uncertainty of the designation of the nominee for the overseas provider of funds, the uncertainty of the requirements of the Foreign Investment Review Board in that regard as well as further difficulties which were said to have arisen in the provision of funds from the lack of a certificate from the local authority concerning certain developments of the property connected with alterations to the building for which the respondent had approved plans and specifications. A comparison of these alterations with the survey suggested a problem which the appellants wished to have satisfactorily resolved. This could not be done by 15 December 1988. Unsurprisingly, in view of his insistence at all times upon settlement on 15 December 1988, the respondent refused to accept these excuses. He refused to extend the time within which Mrs Hodgekiss might enter into the contract for sale. He had suffered inconvenience, having to borrow substantial sums for the other transactions in which he was involved. He therefore proceeded to terminate his contractual arrangements with Mrs Hodgekiss. He also commenced proceedings for recovery of possession of the property from Mr Hodgekiss. As I have said, the hearing of the claim by Mrs Hodgekiss for relief and the claim of the respondent for possession were consolidated and heard together by Waddell CJ in Eq. Refusal of relief at trial At first instance, a number of arguments were advanced in support of Mrs Hodgekiss's claim for specific performance of the contract of sale arising out of the "subject preliminary agreement". As to some of the arguments, including that based on the contention that the respondent was estopped from raising the validity of the prescribed form although included amongst the grounds in the notice of appeal and in written argument, the appellant did not rely upon them when the appeal was heard. The principal contention for Mrs Hodgekiss was that the provision in the contract requiring settlement on 15 December 1988 amounted to an attempt to exclude, modify or restrict a provision of the preliminary agreement. It was accordingly by condition 9 of the preliminary agreement, "void and of no effect'. The argument proceeded thus. As the contract of sale was relevantly served, in its final form, only on 8 URJ HODGEKISS v ZADRO (Kirby P) 7 December 1988, the purchaser was secured, by condition 4, five business days within which to offer to enter into the contract of sale. By condition 5, if the purchaser so offered, the vendor was required "no later than on the next business day after the end of that period or on a later day agreed to by the purchaser'. Accordingly, so it was said, the passage of 5 business days after 8 December 1988 would end on 15 December 1988. The vendor therefore had until 16 December 1988 to offer to enter into the contract of sale. The attempted provision of a special condition requiring settlement on 15 December 1988 was accordingly an attempt to circumscribe the timetable laid down in the conditions to the preliminary agreement. This could not be permitted by reason of condition 9. Accordingly, it was void and of no effect. There are numerous answers to these arguments, quite apart from those grounded in the suggested invalidity of the preliminary agreement, based as it is on the prescribed form doubted in the three decisions earlier referred to. In summary, the other answers are as follows: 1. The invalidity provided by condition 9 is not of the whole contract in which the offending provision appears. It is simply of "any provision of a contract". Accordingly, on its face, the only provision attacked being the special condition requiring settlement on 15 December 1988, that condition alone would be effected by CL9. Only it would be "void and of no effect". (at page 17) 2. The fact that the contract of sale contained a provision which the purchaser asserts is void and of no effect would not make any less effective the service of the contract of sale on the purchaser on 8 December 1988, upon which the respondent principally relied. It may have been a contract with a void provision. But it was a contract of sale nonetheless. Accordingly, the time provided by condition 4 began to run on 8 December 1988. 3. In any case, the service of the contract of sale on 8 December 1988 was, arguably, not the first service of the contract of sale for the purpose of condition 4. The service of the earlier contract, without the name of the purchaser endorsed, might well have been a sufficient compliance with condition 4. After all, the omission of the specification of the name of the purchaser only occurred at the request of the purchaser's interests. It was open to the purchaser, as the vendor concurred, to insert the name of herself or her nominee as she had asked. If this had been done, the time would have commenced to run on 30 November 1988. This would have allowed ample time for compliance with the timetable contemplated by the conditions to the preliminary agreement before 15 December 1988. Such difficulty as arose in such compliance arose directly, and only, out of the request of the solicitor for Mrs Hodgekiss and on her behalf. So far as matters of discretion, relevant to the remedy sought, are concerned, it is somewhat unconvincing to suggest that, on the basis of a shortage of time created entirely by the request of the Hodgekiss interests, the respondent should lose the benefit of a special condition upon which he was at all times, to the knowledge of those interests, insisting. Even more unattractive is the suggestion that, by such indulgence, not only was the special condition rendered void but the whole contract of sale as well. (at page 18) JOBNAME: No Job Name PAGE: 8 SESS: 1 OUTPUT: Thu Mar 6 17:18:12 2008 /reports/caseml]/case/urj/8901288 UNREPORTED JUDGMENTS 4. The latter suggestion was necessary as counsel for the appellants recognised) because of the clear non-compliance of Mrs Hodgekiss with condition 4 in the preliminary agreement. It is made plain in condition 3 that the contract of sale proffered to the purchaser "must be the same as the one attached to this preliminary agreement". Accordingly, by the terms of the preliminary agreement, it was not open to the purchaser to excise the special condition as to settlement on 15 December 1988 from that contract. At least it could not do so without the agreement both of the purchaser and of the vendor. To such a deletion, the vendor would never agree. Nor did the Hodgekiss interests ever specifically agree to such a variation before that date. At last once the contract of sale was served in its final form on 8 December 1988, time began to run against the purchaser, ie Mrs Hodgekiss. She then had 5 business days after the contract of sale was served within which to offer to enter into the contract of sale. She did not do so within the 5 business days, ie before 15 December 1988. (at page 19) On the contrary, on 16 December 1988, her solicitor offered a number of excuses as to why she could not have done so or would not do so. But by condition 7 of the preliminary agreement, if a purchaser does not enter into the contract of sale in accordance with condition 4, the preliminary agreement expires. The expiry of the preliminary agreement is not only provided for in CL7. It is earlier provided for in similar emphatic terms in CL4 itself. (at page 20) . It was this failure on the part of Mrs Hodgekiss to act within 5 business days (a matter not in dispute) to offer to enter into the contract of sale as served on her that drove her counsel to argue that the contract of sale as served was not a "contract of sale" within the meaning of the conditions. However the only basis which he could provide for that submission was the suggested incompatibility between special condition as to settlement and the timetable provided by conditions 4 and 5. For reasons which I have already made plain, that argument is unacceptable: (a) It is not the contract but only an incompatible provision of the contract which is rendered void and of no effect. The contract is still valid; (b) In any case, the purchaser had no option under condition 3, in the circumstances, but to serve the contract of sale as attached to the preliminary agreement; (c) The time relevant to the purchaser, namely 5 business days, did not expire on 16 December but only on 15 December 1988. Yet by that time Mrs Hodgekiss did not offer to enter into the contract of sale; and (d) Such problem of time as had arisen was the direct result of the request by the Hodgekiss interests upon which they were now seeking to rely to defeat not only the provision as to time for settlement but the contract of sale itself. A more unmeritorious argument could scarcely be framed. Discretionary considerations When to all of the foregoing is added the failure of Mrs Hodgekiss to agree to enter the contract of sale on 15 December 1988 (although she knew the insistence of the respondent to settle on the specified 50 date) and her failure thereafter, either within the time provided by condition 4 of the preliminary agreement or otherwise to offer to enter into the contract of sale URJ HODGEKISS v ZADRO (Priestley JA) 9 as presented to her, as well as her belated reliance upon her own problems of financing and suggested problem with the local authority (which was in any case covered by CL7 of the contract of sale) the decision of Waddell CJ in Eq to deny relief appears entirely understandable. In disposing of Mrs Hodgekiss's appeal it is enough for this Court to say, in the review of his Honour's decision, that there was ample material upon which his Honour could reach the conclusion which he did. No error of principle has been shown in his exercise of discretion. Nor has it been shown that the refusal of relief results in a manifest injustice. On the contrary, the arguments relied upon by the appellants are "pernickety" as the respondent's solicitor described one of them when it was first expressed. Especially is this so to the extent that the appellants were urging the invalidity of the preliminary agreement (or the contract of sale) based upon a condition whose fulfilment was said to be void because of an arrangement introduced at the specific request of the appellants themselves. Not only do I see no error in the decision of Waddell CJ in Eq that would authorise disturbance by this Court. I consider that his Honour's refusal to provide the relief sought by Mrs Hodgekiss was the only one open to him in the circumstances which have been described. Conclusions and orders It follows that the appeal by Mrs Hodgekiss from the refusal of Waddell CJ in Eq to provide an order of specific performance and other relief must be dismissed with costs. Consequentially, as was agreed, the appeal from his Honour's orders granting possession to the respondent of the property known as 38 Woodside Avenue, Strathfield must be confirmed. The respondent should have leave to issue a writ of possession forthwith, such writ to lie in the office of the Sheriff pending the expiration of 30 days. The dismissal of the appeal confirms the order below that Mr Hodgekiss must pay to the respondent, by way of mesne profits, $1,000 per fortnight commencing on 28 August 1989 and thereafter on 14 and 28th day of each and every month until possession of the premises is returned to Mr Zadro. Mahoney JA I agree with the orders proposed by Kirby P and generally with his reasons. Waddell CJ in Eq was correct in his discretionary refusal of specific performance. The contract (if it was made) was made by the vendor on the basis that it would be completed on the stated date. It would be inequitable, for that and other reasons, to force him to perform it now. I do not think that, in the end, there was a contract to be enforced. When the Preliminary Contract was made, its terms were not inconsistent with the legislation: all that had to be done to complete it could be done within the prescribed time. If there was default in the procedure prescribed by or under the legislation, it arose at least partly by reason of what the purchaser sought to have done. The correspondence and discussions which took place indicate, I think, that insofar as the matter was delayed or the procedure varied, it was relevantly for the purchaser's purpose. It is therefore not necessary that a decision be made upon the correctness of the cases referred to ky the President or the construction of the legislation. Priestley JA I agree with Kirby P. Appeal of Mrs Sandra Beverley Hodgekiss dismissed with costs; Appeal of Mr William Hodgekiss dismissed with costs; 10 UNREPORTED JUDGMENTS Order that leave be given to Mr Fermino Carl Zadro to issue a writ of possession forthwith, such writ to lie in the office of the Sheriff pending the expiration of 30 days; and Order that Mr William G Hodgekiss pay to Mr Fermino Carl Zadro by way of mesne profits $1,000 per fortnight commencing on 28 August 1989 and thereafter on the 4th and 28th day of each and every month, henceforth payable in advance, until possession of the property known as 38 Woodside Avenue, Strathfield is surrendered in accordance with these orders. Counsel for the Appellant: BW Rayment QC/M Cashion Solicitors for the Appellant: JM Caruana, Kay and Barry Counsel for the Respondent: MJ Neil QC/JB Maston Solicitors for the Respondent: Brian Collina