Reported Decision : (2001) NSW ConvR 55-976 New South Wales Supreme Court CITATION : Consolidated Byrnes Holdings Pty. Ltd. v. Blackman [2001] NSWSC 136 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1478/01 HEARING DATE(S) : 20 February 2001 JUDGMENT DATE : 20 February 2001 PARTIES : Consolidated Byrnes Holdings Pty. Ltd. - plaintiff Warren Franklin Blackman - defendant JUDGMENT OF : Hodgson CJinEq at 1 COUNSEL : Mr. S. Titus, solicitor, for plaintiff Mr. A. Ogborne for defendant SOLICITORS : Verekers, Sydney for plaintiff Jeffrey Hinde & Associates, Double Bay for defendant CATCHWORDS : PROPERTY - Real property - Caveat - Application to extend - Need for evidence of elements of serious question. DECISION : See end of judgment IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORAM: HODGSON, CJ in Eq. Tuesday 20th February 2001 NO. 1478 OF 2001 CONSOLIDATED BYRNES HOLDINGS PTY. LIMITED V. BLACKMAN JUDGMENT 1 On 15 December 2000, the plaintiff lodged a caveat 7291574 claiming an estate or interest in the property Folio Identifier 1/75926. The defendants, who are the registered proprietors of that property, requested the Registrar-General to issue a notice under s.74J of the Real Property Act, and such notice was served on or about 30 January 2001. I am dealing with an application by the plaintiff to extend that caveat. 2 The application is associated with a summons by the plaintiff against the defendants seeking specific performance of a contract for sale of that property from the defendants to the plaintiff, dated 24 May 2000. However, the contract is not in evidence, because it is not stamped and arrangements for stamping have not yet been made to my satisfaction. However, I have heard the application on the basis that such arrangements may yet be made, and the judgment will, for the most part, proceed on the assumption that the contract will be received into evidence. 3 The contract was exchanged after an auction. The purchase price was $1.15 million, and the contract provided for settlement on 24 November 2000. It provided that time could be made of the essence by a notice to complete of two weeks. 4 On 29 August 2000 the defendants' solicitors wrote to the plaintiff's then solicitors requesting that the contract be settled at the end of January 2001. 5 On 12 September 2000, the plaintiff's solicitors advised the defendants' solicitors that the plaintiff would not agree to that without appropriate terms and conditions, and they sent to the vendors' solicitors a letter from the plaintiff requiring that the existing contract be terminated and a new contract exchanged. 6 On 14 September 2000, the defendants' solicitors wrote to the plaintiff's solicitors advising that the defendants were not prepared to terminate and enter into a new contract, and that they expected the matter to be settled as per the contract, "unless you can confirm today that your client wishes to settle later". There was a response from the plaintiff's solicitors on 20 September to the effect that they could not get instructions. There was a further communication from the plaintiff's solicitors on 3 October 2000, to the effect that the plaintiff had contacted the vendors' daughter and that the plaintiff was waiting to hear from her. 7 In an affidavit, relied on by the plaintiff, of James Byrnes, who is the husband of the sole director of the plaintiff, Mr Byrnes says that he had a conversation with the defendants' daughter in October or November 2000, in which the daughter requested that the matter settle in February, so that tenants in the premises could stay on until then. Mr Byrnes says that he replied to the effect that he wanted to change the front page of the contract. Mr Byrnes says that the defendants' daughter replied to the effect that "that is not a matter for me but I cannot see any reason for that being a problem. Are you prepared to extend the time for settlement", to which Mr Byrnes says he replied, "Yes, please get something to our lawyers just setting out a new date". According to Mr Byrnes the defendants' daughter replied, "It will be February some time, but I will get them to confirm that". 8 On 26 October 2000, the plaintiff's solicitors wrote to the defendants' solicitors advising that the plaintiff was now agreeable to extend the settlement date to February 2001 and continuing, "Kindly advise how you propose to document and confirm the new completion date. What date in February, ie (1)rescind and rearrange; (2)deed; (3)letter; (4)supplementary agreement". 9 The defendants' solicitors responded with a handwritten facsimile sent on 24 October 2000, to the effect that they had previously made it clear that they would not terminate and enter into a new contract, and that because the plaintiff had consistently failed to respond to their requests, the tenant had been lost; and the handwritten note went on to put the plaintiff on notice that the defendants would enforce the penalty interest conditions and that, if the plaintiff did not settle on or before 24 November, they would immediately thereafter issue a notice to complete. 10 On 31 October 2000, the defendants' solicitors received a copy of a facsimile from the plaintiff claiming that the defendants had requested an extension until February, that the extension had been granted, that the plaintiff had made arrangements to delay moving, that the plaintiff's funds had been reinvested, and that the plaintiff would not be settling the matter until February as a result of their request. 11 Thereafter there was correspondence in which their respective positions were substantially maintained; and the matter was not settled on 24 November 2000. On 27 November 2000, the defendants issued a notice to complete requiring completion on 13 December. That did not happen, and a notice of termination was issued by the defendants on 15 December 2000. 12 Mr Byrnes gave oral evidence to the effect that there was a verbal approval from St George Bank of finance necessary to complete the purchase. However, he did not assert readiness, willingness and ability in his evidence to carry out the contract. He also gave evidence to the effect that he did not have a position with the company that put him in any position to make any agreement or give any undertaking on behalf of the company. There is no evidence before me from any person in that position. 13 It was put by the plaintiff's solicitor from the Bar table that he had attempted to get in touch with Mr Byrnes' wife this morning, but had been unable to do so. That is the only explanation offered for there being no evidence from anyone with authority to make agreements on behalf of the company or to give any undertakings on behalf of the company. 14 Mr Titus for the plaintiff submitted that there was an arguable case that the vendors had waived time for completion, that the purchaser had acted to its detriment and that, accordingly, the notice to complete and the purported termination was invalid. He submitted that the balance of convenience was plainly in favour of the plaintiff. 15 Mr Ogborne for the defendants submitted that, in relation to the claim of waiver and in relation to detriment, there was no evidence of relevant belief or reliance by anyone with authority to make decisions on behalf of the company. He submitted that in any event, having regard to the history that I have outlined, there was no basis for any belief that the time for completion had been altered from 24 November 2000. He submitted that there was no evidence of readiness, willingness and ability to perform the contract. 16 Indeed, as a result of an enquiry by me, it was made clear on behalf of the plaintiff that the plaintiff was not ready, willing and able to pay penalty interest as from 24 November 2000. 17 In an interlocutory application such as this, the essential questions are the serious question to be tried and balance of convenience. However, the serious question to be tried does need to be supported by evidence. In this case, as I have said, there is no evidence of reliance by anyone with authority to make decisions on behalf of the company; and there is no evidence of readiness, willingness and ability. 18 In any event, the history that I have outlined shows that the plaintiff, at the highest, had only the slenderest grounds for thinking that the completion date would not be insisted on. I am not called upon to make a final decision on that matter and will not do so. However, on the material before me, the plaintiff's case on that point seems extremely weak. 19 Further, the only readiness, willingness and ability that even has been indicated in any way to the Court is not a readiness, willingness and ability to perform the contract, but to perform a different contract and not pay penalty interest. There is no immediate threat to deal with the property. In my opinion the balance of convenience does not favour the plaintiff in any event. 20 For those reasons I refuse the application to extend the caveat. (Counsel addressed on costs) 21 I dismiss the application for extension of caveat. 22 I order that the plaintiff pay the defendants' costs of the interlocutory application. 23 I direct that a statement of claim be filed and served on or before 5 March 2001. 24 I stand the matter over to the Registrar's list on 6 March 2001. 25 Exhibits may be returned. *********** Last Modified: 03/09/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.