Amaya v Everest Property Holdings Pty Ltd; Firmstone v Everest Property Holdings Pty Ltd; Sarkar and Islam v Everest Property Holdings Pty Ltd [2010] NSWCA 315

New South Wales Court of Appeal

CITATION: Amaya v Everest Property Holdings Pty Ltd; Firmstone v Everest Property Holdings Pty Ltd; Sarkar and Islam v Everest Property Holdings Pty Ltd [2010] NSWCA 315

HEARING DATE(S): 9 September 2010

JUDGMENT DATE: 24 November 2010

JUDGMENT OF: Beazley JA at [1]; Campbell JA at [2]; Young JA at [3]

(1) Appeal 2008/278655 of Sarkar and Islam v Everest Property Holdings Pty Ltd is allowed with costs. DECISION: (2) Appeals 2007/258059 and 2007/258063 of Amaya v Everest Property Holdings Pty Ltd and Firmstone v Everest Property Holdings Pty Ltd respectively are dismissed with costs. (3) Parties to bring in short minutes of the appropriate orders. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: Contract- Condition precedent to performance on innocent party- principle that other party may dispense innocent party from performing condition precedent by other party intimating that performance useless- intimation by conduct- significance of normal conveyancing practice- how reliance on intimation established. Contract- Vendor and purchaser dispute- failure to complete by purchasers- validity of vendor's service of notice of termination of contract- whether vendor performed obligation to serve occupation certificate "within meaning of Environmental Planning and Assessment Act 1979"- Environmental Planning and Assessment Regulation 2000, reg 155(2)- fire certificate and schedule required to "accompany" occupation certificate- whether requirement continues after certificate issued- requirement refers to time of issue of certificate.