Castle Constructions Pty Limited v Fekala Pty Limited [2002] NSWSC 76

Reported Decision : (2002) NSW ConvR 56-020

New South Wales Supreme Court

CITATION : Castle Constructions Pty Limited v Fekala Pty Limited [2002] NSWSC 76 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3812/01 HEARING DATE(S) : 13 February 2002 JUDGMENT DATE : 26 February 2002

PARTIES : Castle Constructions Pty Limited (Plaintiff/Cross-Defendant) Fekala Pty Limited (Defendant/Cross-Claimant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr D L Warren (Plaintiff/Cross-Defendant) Mr M W Young (Defendants/Cross-Claimants) SOLICITORS : Day Dockrill (Plaintiff/Cross-Defendant) Nugent Wallman & Carter (Defendants/Cross-Claimants) CATCHWORDS : CONVEYANCING - vendor and purchaser - vendors selling as mortgagees exercising power of sale - one of the thirty-seven mortgagees under the mortgage holding as tenants in common died prior to the contract for sale of land being entered into - purchaser failing to serve transfer as required by contract - vendor failed to give details required for preparation of transfer having regard to death of mortgagee as required by contract - vendor served notice to complete making both time and date of the essence - but not referring to failure to serve transfer - transfer submitted 2 days before date fixed for completion - signatures of all vendor mortgagees not obtained within the time allowed - vendors' solicitor purportedly sought to extend the time originally made as essential - purchaser did not accept extension and attended to settle as required by original notice - vendors could not complete - whether purchaser in default could take advantage of vendors' default - whether party giving notice to complete could waive or alter its terms - whether notice to complete operated to waive rights to require service of transfer LEGISLATION CITED : Conveyancing Act 1919 s54A Falconer v Wilson [1973] 2 NSWLR 131 CASES CITED : Halfpenny v Wilson (1967) 87 WN Pt 1 (NSW) 547 Mearns v Parras Holdings Pty Limited [1994] NSW Conv. R 55-705 Quadrangle Limited v Jenner [1974] 1 All ER 729 DECISION : See paragraph 18