Lacey v Hayden & Anor [2000] NSWCA 182

Reported Decision : [2000] NSW ConvR 55-949

New South Wales Court of Appeal

CITATION : Lacey v Hayden & Anor [2000] NSWCA 182 FILE NUMBER(S) : CA 40925/98 HEARING DATE(S) : 12 July 2000 JUDGMENT DATE : 24 July 2000

PARTIES : Gillian Lacey - Appellant Terence Harold Hayden & Victoria Hayden - Respondents JUDGMENT OF : Giles JA at 1; Fitzgerald JA at 92; Heydon JA at 96

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT 3201/90 FILE NUMBER(S) : LOWER COURT Young J JUDICIAL OFFICER :

COUNSEL : Appellant in person C R Newlands SC & P T Newton - Respondents SOLICITORS : Appellant in person P J Straton & Associates, North Sydney - Respondents CATCHWORDS : VENDOR AND PURCHASER - vendor could remain in possession after completion until specified date - vendor not prepared to complete unless purchasers let her stay in possession for a longer period - purchasers absolved from obligation to complete - Foran v Wight (1989) 168 CLR 384 applied. DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40925/98 EQ 3201/90

GILES JA FITZGERALD JA HEYDON JA Monday 24 July 2000

LACEY v HAYDEN & ANOR JUDGMENT 1 GILES JA: This is an appeal from the dismissal of a claim for damages for failure to complete a contract for the sale of land. 2 The appellant was the vendor to the respondents of land at Dangar Island ("the property") under a contract dated 20 September 1989 ("the contract"). The price was $175,000. A deposit of $17,500 was payable to the appellant's solicitors, to be invested in a way stated in the contract, and the balance of $157,500 was payable "on completion within six weeks from the date hereof". By special condition 4 it was agreed that in a notice making time of the essence fourteen days "shall be deemed to be reasonable and sufficient notice for that purpose". 3 According to the printed form of the contract, the 1988 edition of the Law Society and Real Estate Institute approved document, the benefit of possession was to be given as at the date of completion with vacant possession. Special condition 7, however, provided - "The Vendor shall have the right to occupy the premises under licence until 8 December 1989 Provided that the Vendor shall make such election to so occupy the premises prior to completion in writing to the Purchasers solicitors".