Dotype v S & I Investments [2000] NSWSC 342

New South Wales Supreme Court

CITATION : Dotype v S & I Investments [2000] NSWSC 342 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1786 fo 2000 HEARING DATE(S) : 6 and 7 April 2000 JUDGMENT DATE : 7 April 2000

Dotype Pty Limited (First Plaintiff/First Cross-Defendant) PARTIES : Actdad Pty Limited (Second Plaintiff/Second Cross-Defendant) S & I Investments Development NSW Pty Limited (Defendant/Cross-Claimant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr D Ryan SC with him Mr J-J Loofs (Plaintiffs/Cross-Defendant) Mr B Coles QC with him Mr P Clay (Defendant/Cross-Claimant) SOLICITORS : Robert Wehbe & Partners (Plaintiffs/Cross-Defendants) Michie, Shehadie & Co (Defendant/Cross-Claimant) DECISION : See paragraphs 25 and 26

1

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

FRIDAY 7 APRIL 2000

1786/00 - DOTYPE PTY LTD & ANOR v S & I INVESTMENTS PTY LTD

JUDGMENT

1 The plaintiff companies own properties 14 and 16 Francis Street, Dee Why. On 4 February 1999 they entered into contracts to sell those properties to the defendant company, which I will call S & I, for one million dollars each. The contracts were interdependent. The contracts provided for completion on 22 February 1999. 2 The vendors were not registered as proprietors of those properties but were the purchasers of them under contracts for sale dated 6 July 1998. Those contracts provided for delayed completion dates of 20 January 1999, which date was extended by agreement to 22 February 1999. It was after this later date was agreed that agreement was reached with S & I, through Mr Mark Humphery, a director of that company, as to price and settlement date on the sale to S & I of 14 and 16 Francis Street. 3 There are two additional properties, namely 18 Francis Street and 47 Lewis Street, which S & I had also contracted to purchase from different vendors. The intention was to settle the purchase and the on-sale of 14 and 16 Francis Street on the same day, namely 22 February. 4 Mr Jassey, the solicitor acting for S & I, told Mr Robert Wehbe, the solicitor for the plaintiffs, on 18 February that he would not be ready to settle on 22 February. Notices to complete were served on 23 February requiring settlement on 23 March 1999. There is now no issue about the notices not having been in proper form or properly served. 5 Settlement did not take place as required by the notices and by notice dated 24 March 1999 the plaintiffs gave notice of termination of the contracts. 6 The plaintiffs had, upon entry into their contracts for purchase, lodged a development application with the Warringah Shire Council which had been rejected. On 10 March 1999 the plaintiffs completed their own contracts for the purchase of 14 and 16 Francis Street, funds being provided by the National Australia Bank. The arrangement with the bank was that it would not register the transfer or mortgage for a period of about one month but would hold the documents as security. I am satisfied that proper arrangements were made with the bank for the settlement proposed for 23 March 1999 in accordance with the notice to complete. 7 On 26 March there was a conversation between Mr Humphery and Mr Joe Wehbe, a director of Actdad Pty Ltd, the first plaintiff. Mr Ray Wehbe, a nephew, is a director of Dotype Pty Ltd, the second plaintiff. I do not think it was suggested that Mr Joe could not bind his nephew or that what he said did not bind both companies. By this time, namely prior to the termination, Mr Humphery had put into Council a development application for the four properties seeking approval for a development of 56 units. There is some dispute about the conversation but Mr Humphery says that the following statements were made during it. He said that he said: