Parker v Bravo Building [2003] NSWSC 451

New South Wales Supreme Court

CITATION : Parker v Bravo Building [2003] NSWSC 451 HEARING DATE(S) : 8, 9 and 16 May 2003 JUDGMENT DATE : 28 May 2003 JURISDICTION: Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Declarations that vendor bound by obligations. Order to perform so far as possible.

CATCHWORDS : CONTRACTS - vendor and purchaser - contract for sale of land with strata unit to be erected - term making contract conditional upon performance of certain work - term providing for fittings and finishes of equivalent quality - additional work not performed - finishes not in accordance with list - whether agreement for variation - whether writing required for variation - whether substitutions satisfied conditions for substitution - EQUITY - specific performance - where consent of outside agency required - form of order CASES CITED : Tallerman & Co Pty Ltd v Nathans Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 PARTIES : Russell Parker (Plaintiff) Bravo Building Pty Ltd (Defendant) FILE NUMBER(S) : SC 4812 of 2002 COUNSEL : Mr A Ogborne (Plaintiff) Mr J Armfield (Defendant) SOLICITORS : Turner Freeman (Plaintiff) Gells (Defendant)

- 17 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

WEDNESDAY, 28 MAY 2003

4812/02 RUSSELL PARKER V BRAVO BUILDING PTY LTD JUDGMENT Outline 1 The plaintiff seeks an order for specific performance of a contract for the sale by the defendant company to him of a strata title property. The defendant claims to have terminated the contract after the plaintiff failed to comply with a notice to complete. Facts 2 By contract 1 May 2001 the plaintiff, Mr Parker, agreed to purchase from Bravo Building Pty Ltd (Bravo) a property which could be described as a townhouse and garage which was part of a strata title development to be constructed by Bravo in Kumbardang Avenue, Miranda. 3 The building work had not progressed far, if it had progressed at all, at the date of the contract. The contract itself is a most unsatisfactory document. It is clear that no proper attention could have been given to it. What the parties obviously intended was to enter into a contract for the sale and purchase of a townhouse property to become a lot in the strata plan in a development to be constructed in accordance with a development consent of the Sutherland Shire Council. That consent document is annexed to the contract. There is no term requiring the building to be completed in accordance with the consent and approved plans. There are two clauses as to the vendor's obligations to obtain registration of the strata plan. The special conditions are in no sensible order and appear clearly to be some sort of cut and paste job. The lack of attention given to the contract can be shown by setting out clause 52 which is as follows: 52. BENEFITS TO ENSURE [SIC] The parties hereby acknowledge that the benefit of the obligations warranties covenants and contracts contained in this contract having application after the date of completion shall ensure [sic] notwithstanding the completion of this contract. 4 There are many other ridiculous provisions. Clause 39 provides that requisitions under printed clause 5.1, must be the form of attached requisitions. And if that were not bad enough, no form is attached. There is little to be gained by setting out other examples of poor draftsmanship. It is hardly surprising that this sort of contract results in litigation. 5 The following clauses are included in the contract: 7 Claims by purchaser The purchaser can make a claim (including a claim under clause 6) before completion only by serving it with a statement of the amount claimed, and if the purchaser makes one or more claims before completion - 7.1 the vendor can rescind if in the case of claims that are not claims for delay - 7.1.1. the total amount claimed exceeds 5% of the price; 7.1.2 the vendor serves notice of intention to rescind; and 7.1.3 the purchaser does not serve notice waiving the claims within 14 days after that service; and 7.2 if the vendor does not rescind, the parties must complete and if this contract is completed - 7.2.1 the lesser of the total amount claimed and 10% of the price must be paid out of the price to and held by the depositholder until the claims are finalised or lapse; 7.2.2 the amount held is to be invested in accordance with clause 3.1; 7.2.3 the claims must be finalised by an arbitrator appointed by the parties or, if no appointment is made within 1 month after completion, by an arbitrator appointed by the President of the Law Society at the request of a party; 7.2.3 the purchaser is not entitled, in respect of the claims, to more than the total amount claimed; 7.2.5 any net interest on the amount held must be paid to the parties in the same proportion as the amount held is to be paid; and 7.2.6 if the parties do not appoint an arbitrator and neither party requests the President to appoint an arbitrator within 3 months after completion, the claims lapse. (By Clause 30.1.10 5% is substituted for 1%).