Tuedwell Pty Ltd v J.C. Craig Constructions Pty Ltd and Anor [2003] NSWSC 450

New South Wales Supreme Court

CITATION : Tuedwell Pty Ltd v J.C. Craig Constructions Pty Ltd and Anor [2003] NSWSC 450 HEARING DATE(S) : 23 May, 2003 JUDGMENT DATE : 23 May 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Declaration that vendor entitled to terminate contract and forfeit deposit.

CATCHWORDS : VENDOR AND PURCHASER - NOTICE TO COMPLETE - Whether in the absence of any evidence of special circumstances, a fourteen day Notice to Complete gives reasonable time - whether a vendor giving Notice to Complete may unilaterally extend time for compliance - whether vendor validly rescinded contract. HELD: fourteen day Notice to Complete gave reasonable time - vendor entitled to terminate. - Castle Hill Tyres Pty Ltd v Luxspice Pty Ltd (1996) 7 BPR 14,959 CASES CITED : - Fekala Pty Ltd v Castle Constructions Pty Ltd [2002] NSWCA 297 - Paclyn Pty Ltd v G.P. Harris Real Estate Pty Ltd (1987) 4 BPR 9,267 - Sindel v Georgiou (1984) 58 ALJR 515 Tuedwell Pty Ltd - Plaintiff PARTIES : J.C. Craig Constructions Pty Ltd - First Defendant John Christopher Craig - Second Defendant FILE NUMBER(S) : SC 1526/03 COUNSEL : V. Culkoff - Plaintiff B.J. Skinner - First and Second Defendants SOLICITORS : Steven Klinger - Plaintiff A.C. Knibb Kaine & Associates - First and Second Defendants

Ex tempore

Introduction

1 By its Summons filed on 20 February 2003 the Plaintiff claims a declaration that it has validly rescinded a contract dated 10 September 2002, whereby it agreed to sell to the First Defendant land known as 195 Fox Valley Road, Wahroonga. The Plaintiff further seeks a declaration that it is entitled to forfeit to itself the 10% deposit paid under the contract; in addition it seeks damages. 2 The Second Defendant is joined as a party to the proceedings because he is a guarantor of the First Defendant's obligations under the contract for sale. 3 By their Cross Claim filed on 1 April 2003 the Defendants seek declarations that the Plaintiff has wrongfully repudiated the contract for sale, that the First and Second Defendants have validly terminated the contract, and that they are entitled to a return of the deposit paid thereunder. The Defendants also claim damages against the Plaintiff for breach of contract, such damages to be ascertained by enquiry before a Master.