Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Carrapetta v Rado [2012] NSWCA 202 Hearing dates: 20 June 2012 Decision date: 03 July 2012 Before: Beazley JA at [1]; Barrett JA at [2]; Hoeben JA at [75] Decision: 1. Appeal dismissed. 2. That the appellants pay the respondent's costs of the appeal. [Note: 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: CONVEYANCING - completion of contract - time for completion - time of the essence - by notice given - when notice to complete may be given - notice given by vendor - purchasers in default through failure to complete on specified completion date - contract requires payment of interest on balance of purchase moneys - uncertainty as to applicable rate of interest - where vendor before giving notice to complete reserves rights concerning calculation of interest and states that she relies on the contract - vendor later submits a settlement statement containing interest amount arguably inconsistent with the contract - whether that subsequent action affects the validity of the notice to complete - observations on the status and purpose of a settlement statement submitted by one party to the other. Cases Cited: Blacktown City Council v Fitzgerald (1990) 6 BPR 13409 Carne v Debono [1988] 1 WLR 1107 Kraguljac v A & B Property Developments Pty Ltd (No 2) [2012] SASC 1 Louinder v Leis [1982] HCA 28; (1982) 149 CLR 509 Malouf v Sterling Estates Development Corporation Pty Ltd [2002] NSWSC 920 McNally v Waitzer [1981] 1 NSWLR 294 Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; (1974) 131 CLR 286 Oakglade Investments Ltd v Dhand [2012] EWCA Civ 286 Paclyn Pty Ltd v GP Harris Real Estate Pty Ltd (1987) 4 BPR 9267 Schindler v Pigault (1975) 30 P & CR 328 Sterling Estates Development Corporation Pty Ltd v Malouf [2003] NSWCA 278; (2003) 58 NSWLR 685 Texts Cited: R M Stonham, "The Law of Vendor and Purchaser" (1964) P J Butt, "The Standard Contract for Sale of Land in New South Wales" (second edition, 1998) Category: Principal judgment Parties: Frank Charles Carrapetta - First Appellant Lucy Maree Carrapetta - Second Appellant Denise Amber Carrapetta - Third Appellant Margaret Ann Rado - Respondent Representation: Mr R A Parsons - Appellants Mr M W Hadley - Respondent V L Macri Lawyers - Appellants Schweizer Kobras - Respondent File Number(s): 2012/00095244 Decision under appeal Before: Nicholas J File Number(s): 2012/00030874 Judgment 1BEAZLEY JA: I agree with Barrett JA. 2BARRETT JA: This is an appeal from a decision of a judge of the Equity Division (Nicholas J) who made a declaration as follows in a vendor and purchaser case brought by the present respondent (vendor) as plaintiff against the present appellants (purchasers) as defendants: A Declaration that the contract dated 19 September 2011 between the Plaintiff as Vendor and the First, Second and Third Defendants as Purchasers in respect of 2 XXXX Avenue, Mosman being the whole of the land comprised in Folio identifier 9/16492 was validly terminated by the Plaintiff by letter dated 19 December 2011." 3The proceedings came on for urgent final hearing in the Duty List. The primary judge heard them on 20 February 2012 and delivered judgment on 27 February 2012. 4His Honour found that the respondent had, on 1 December 2011, served on the appellants a valid and effective notice to complete; that the service of the notice caused time to become of the essence of the contract so as to require completion on or before 16 December 2011; that the appellants defaulted in their obligation to complete by that deadline; and that the respondent was thereby entitled to terminate the contract, which she did by letter dated 19 December 2011 served by her solicitors. The contract and the "concession" 5The contract related to a house property at Mosman. It was in the form of the 2005 edition of contract for the sale of land published by the Law Society of New South Wales and the Real Estate Institute of New South Wales, together with special conditions. 6The price was $3,375,000 and was payable as to a deposit of $168,750 upon exchange of contracts and as to the balance in cash on completion. Part only of the required deposit was paid upon exchange; the balance was paid at a later time. The deposit was paid to the vendor's agent to be held as stakeholder (and continued to be so held when the appeal was heard). 7The contract specified 1 December 2011 as the "completion date". Standard condition 15 provided: "The parties must complete by the completion date and, if they do not, a party can serve a notice to complete if that party is otherwise entitled to do so." 8Standard condition 15 was supplemented by special condition 32: "NOTICE TO COMPLETE (a)With reference to Clause 15 hereof, should a party be entitled to serve a Notice to Complete making time of the essence of this Contract then both parties hereby agree that such Notice may require completion within fourteen (14) days from the date upon which the Notice is given or served and such period as aforesaid shall be deemed to be sufficient time both in law and in equity. (b)If the Vendor is required to issue a Notice to Complete the Purchaser will pay the sum of $275.00 plus GST to cover the Vendor's legal fees and expenses incurred as a consequence of issuing of a Notice to Complete, which sum is agreed to be a genuine pre-estimate of the Vendor's additional expenses occasioned by reason of issuing a Notice to Complete." 9Another special condition (special condition 34(b)), in its printed form, was as follows: "It is an essential term of this Contract that in the event that completion does not take place by the Completion Date the Purchaser will make adjustments as at the Completion Date and will pay to the Vendor on completion in addition to the balance [sic] purchase monies and any other monies payable to the Vendor pursuant to this Contract interest on the balance of purchase monies calculated at the rate of twelve per centum per annum (12%) computed from and including the Completion Date and calculated up to and including the date of completion provided however that should completion at any time be delayed by reason of the Vendor's default then interest shall not be charged for the period during which completion was so delayed. The parties acknowledge and agree that twelve per centum (12%) per annum represents a genuine pre-estimate of the liquidated damages likely to be suffered by the Vendor as a result of completion not taking place on or before the Completion Date. If completion does not take place at the pre-arranged time and place due to delay, error or omission on the part of the Purchaser than the Purchaser must reimburse the Vendor for the additional costs incurred by the Vendor in re-attending settlement at the newly appointed time." 10The contract provided for payment of the balance of the purchase moneys (that is, the price less the deposit paid) in cash on completion and there were, in standard conditions 14.1 to 14.8, provisions about adjustment of various items (rents, profits, rates, charges, land tax and the like) as at the "adjustment date" which was defined as the earlier of the giving of possession to the purchaser and completion. These mechanisms were not affected by any special condition. 11As I have mentioned, the printed form of special condition 34(b) referred to an interest rate of 12 per cent per annum in two places. In both of the exchanged parts of the contract there was a handwritten alteration to the printed form: "twelve per centum (12%)" was changed to "eight per centum (8%)" where secondly appearing, but not where first appearing. The case before the primary judge was, however, conducted on the agreed basis (referred to in submissions before this Court as the "concession") stated at paragraph 5 of the primary judge's reasons as follows: "For the purpose of the present proceedings only, it was agreed that the figure of 8 percent be substituted for the figure of 12 percent where appearing. In other words for these proceedings it was accepted that clause 34(b) required interest at the rate of 8 percent per annum." The proceedings before the primary judge 12The argument of the appellants before the primary judge was that the respondent, as vendor, was not entitled to serve the notice to complete that she purported to serve on 1 December 2011. The reason did not go to any matter concerning the form of the notice. The appellants' argument was that the respondent, as vendor, was in default under the contract when the notice to complete was given. The primary judge summarised that central submission in this way: "However, the defendants submitted that the plaintiff was not entitled to give a valid notice to complete because she herself was in breach at the time the notice was given. It was put that at this time she maintained an entitlement to interest at 12 percent based upon an erroneous interpretation of clause 34(b). Importantly it was put (T p 15): 'What's the breach? The breach is in asserting that the vendor will complete on 16 December which is a permissible date in terms of the contract when one takes into account the mechanism for notice to complete which is contemplated by the contract so completion on 16 December. We'll only accept it on the basis of 12 percent interest for the late completion. We say that there is a breach because it is asserting that the purchasers must complete otherwise in terms of the contract. In terms more favourable to the current vendor than the contract itself provided ...'" 13After referring to the decisions of the High Court in Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; (1974) 131 CLR 286 and Louinder v Leis [1982] HCA 28; (1982) 149 CLR 509, his Honour said: "The defendants' challenge is to the validity of the notice to complete. It involves a scrutiny of its terms. Once that task is undertaken it will be readily seen that the notice required completion in accordance with the contract which, of course, included clause 34(b) which for the purpose of these proceedings, required payment of interest at 8 percent. The notice did not require payment of interest at 12 percent as a condition of completion. The present situation may be contrasted with the requirements of the notice to complete in Neeta which the High Court found invalid because, inter alia, it included a demand for the payment of interest which was outside the terms of the contract." 14The primary judge continued: "However in this case the plaintiff was not at fault. The notice to complete required no more than that the defendants complete the contract on their part. It did not require performance of anything outside the contract, or payment of any amount to which the plaintiff was not entitled." 15Reference was then made to a matter not so far mentioned. On 14 December 2011, that is, two days before the completion date specified in the disputed notice to complete, the respondent's solicitor delivered to the appellants a document setting out a calculation of the moneys due on completion. The calculation, as well as dealing with adjustments for rates and the like as at 16 December 2011, included interest pursuant to the first part of clause 13(b) at the rate of 12% per annum, not 8% per annum, for the period from 1 December 2011 to 16 December 2011. This document delivered by the respondent's solicitors is referred to as "the settlement statement". 16The primary judge said in relation to the settlement statement: "In my opinion, the submission of the settlement statement which contained an item calculated on an erroneous interpretation of clause 34(b) did not constitute breach of any identifiable provision of the contract or amount to a default in the performance by the plaintiff of any obligation under it. It did no more than make a demand which was unenforceable. It did not undermine the validity of the notice to complete. Furthermore, upon receiving the notice, it was for the defendants to comply which, of course, involved payment of interest at 8 percent. In my opinion the defendants' failure to comply entitled the plaintiff to terminate under clause 9 of the contract. Furthermore, there was no evidence to show that the defendants were ready, willing, and able to complete. To the contrary, in my view the evidence of failure to comply with their obligations under the contract until ultimately terminated evidenced their intention to repudiate." 17His Honour then proceeded to make the declaration. The appeal 18The appellants rely on grounds of appeal which concentrate on the fundamental question whether the respondent, as vendor, was, at the time of serving the notice on 1 December 2011, in default under the contract. The appellants say that the primary judge should have held that the respondent was in default and therefore had no entitlement to make time of the essence, so that her notice to complete was ineffective and the purported termination of the contract on the basis of the appellants' failure to complete in accordance with the notice was also ineffective. 19It must be emphasised that the appellants do not challenge the notice to complete otherwise than by arguing that the respondent was not entitled to give it; and that that proposition is advanced on the sole basis that the respondent was in default under the contract when she gave the notice. A vendor's right to serve a notice to complete 20Any right of the respondent, as vendor, to serve a notice to complete arose from standard condition 15. The right to serve a notice to complete was exercisable where (as in fact happened) the parties did not complete by the stipulated completion date of 1 December 2011, provided that the respondent was "otherwise entitled to do so", that is, otherwise entitled to serve such a notice. 21This means, in the case of a vendor, that there is no contractual entitlement to give a notice to complete unless that vendor is, at the time, "able, ready and willing to proceed to completion", to adopt language used by Danckwerts J in Re Barr's Contract [1956] Ch 551 at 556 in a passage approved by Reynolds JA in McNally v Waitzer [1981] 1 NSWLR 294. Reynolds JA said at 296: "The vendor must show that he is willing and able to provide the full consideration which is to pass from him at the due time." 22Hutley JA was of a similar view (at 303): "The requirement that the party giving the notice to complete should be ready, willing and able has obviously been derived from traditional equity pleading of a suit for specific performance and should be given a similar meaning. The allegation of readiness does not mean that the plaintiff has satisfied all that he has been required to do to complete. If this were not so, it would never have been possible to specifically enforce contracts which were dependent upon ministerial consent for he may be required to make application to the Minister which he is not able to do until after he has obtained the order of the court. ... Readiness and willingness is negatived by proof that the party seeking to enforce the contract has done something inconsistent with his obligations under the contract and which has not been or is incapable of rectification. ...The correct rule, in my opinion, is simply that a vendor who is in default in respect of things which up until then should have been done cannot give a notice to complete, but he can give notice to complete prior to performing all those other things which he has to perform in order to complete the contract" 23In McNally v Waitzer, the vendor had given a notice to complete even though he had failed to provide sufficient particulars of title in accordance with the contract. It was held that the notice to complete was therefore of no effect. Hutley JA referred to a passage in the judgment of Barwick CJ and Jacobs J in Neeta (Epping) Pty Ltd at 299: "In cases where the contract contains a stipulation as to time but that stipulation is not an essential term then before a notice can be given fixing a time for performance, not only must one party be in breach or guilty of unreasonable delay, but also the party giving the notice must himself be free of default by way of breach or antecedent relevant delay. Only then may a notice be given fixing a day a reasonable time ahead for performance and making that time of the essence of the contract." 24Hutley JA took the view that, because of the failure to give sufficient particulars of title, the vendor was in default and was not entitled to give a notice to complete. Reynolds JA and Glass JA agreed with the Hutley JA on that aspect. 25The relevant principle was stated thus by Young CJ in Eq (as he then was) in Malouf v Sterling Estates Development Corporation Pty Ltd [2002] NSWSC 920 in a passage (at [36]) not disturbed upon the subsequent appeal (Sterling Estates Development Corporation Pty Ltd v Malouf [2003] NSWCA 278; (2003) 58 NSWLR 685): "If a vendor wishes to issue a notice to complete, it will only be able to do so, (a) if it is free from any relevant breach of contract which may have provided the purchaser a good excuse not to complete by the due date; and (b) it is able to proceed to completion and deliver to the purchaser all the purchaser is entitled to under the contract no later than the expiry of the notice to complete." 26Another useful statement of principle may be found in the recent case of Kraguljac v A & B Property Developments Pty Ltd (No 2) [2012] SASC 1 where Kourakis J (as he then was) reviewed the authorities and said at [92]: "In my view, the effect of these authorities is as follows. First, a notice to complete or settle cannot effectively be relied on by a party who has himself or herself failed to perform an obligation on which the settlement is contractually dependent. In such a case the other party is not obliged to settle because, on a proper construction of the contract the condition on which the obligation rests has not been satisfied. Secondly, the party serving the notice must be in a position to perform any still executory obligations by the date he or she has nominated for settlement. In my view, it must also be the case that a party in breach of an essential term, or who has otherwise repudiated the contract, cannot invoke contractual provisions which demand performance of the other party's obligations on pain of loss of the benefit of the contract. That rule is necessary to avoid an otherwise irreconcilable conflict between the right to terminate, which is enlivened by a failure to comply with a notice to complete given by the contract, and the common law right to terminate of the other party." 27Case law thus makes it plain that the party seeking to make time of the essence must be an "innocent" party who is not "in default" or "in breach" and is "ready, willing and able" to proceed to completion in accordance with the contract. The underlying concept is that a party who gives a notice to complete and thereby calls on the other party to adhere to the contract must be in a state of both present and prospective adherence to the contract. When it is the vendor who serves the notice, he or she must be seen to be willing and able to perform, on the day the notice fixes for completion, the obligations that the vendor is required to perform on completion - predominantly, in a "cash on completion" case such as the present, the obligation of delivering a clear title in return for the money that the contract requires the purchaser to pay in cash on completion - and to have adopted up to the time of service of the notice a stance consistent with that future performance. If the vendor is in breach of contract when the notice is given, he or she is not in such a state of willingness and ability. Likewise, if the vendor has taken and made known an uncompromising stance that he or she will not deliver title on completion except in return for payment of a sum greater than that required by the contract, that vendor will be "in default" (or "in breach") and not be "innocent" or relevantly "ready, willing and able" because the unequivocal stance inconsistent with the contract bespeaks lack of adherence in the nature of anticipatory breach. Facts 28It is necessary now to refer to the facts in greater detail, noting that solicitors acted for the respondent as vendor on the conveyancing transaction and that the appellants did not employ a solicitor until a very late stage. Until the solicitor was retained, the first appellant spoke for both himself and his co-purchasers. The events of relevance emerge from correspondence. 29On 14 November 2011, the respondent's solicitors wrote to the first appellant referring to the fact that, as they understood things from the respondent, the first appellant and the agent had been trying to persuade the respondent to extend the time for settlement. They conveyed their "clear" instructions that there would be "absolutely no extension of the settlement date" (being, of course, 1 December 2011). The letter also said that the solicitors had already put the agents on notice that the agents' representative "made alterations to the contract without authorisation from this office and in breach of what the agent is entitled to amend"; and that the amendments were "significant amendments to our client's detriment". The solicitors then said: "Our client informs us that those amendments were made without her informed consent and the benefit of legal advice in relation to the effect of such amendments. Our client, therefore, reserves all her rights with regard to those amendments and to treat the contract as if those amendments had not been made to the contract" 30The first appellant wrote to the respondent's solicitors on 17 November 2011 referring to several matters, including whether the respondent was "prepared to consider a delayed settlement on terms suitable and favourable to" the respondent (including particular financial terms, stated by way of example). The first appellant also said: "In relation to the contract amendments listed in your letter, they were the terms on which we proposed to purchase the property and were agreed. We understand that the listing agent (Mr Craig) was acting on behalf of Mrs Rado and the changes were agreed."" 31The first and second appellants wrote to the respondent's solicitors on 21 November 2011 saying, among other things, that they had "funding available for settlement of Mrs Rado's property except for a short term short fall of [sic] $1,550,000" and that they were "sourcing a number of other options" but "time is getting away from us" regarding a settlement by 1 December. A proposal for reformulation of the transaction by way of vendor finance was then set out. 32That proposal was rejected by email from the respondent's solicitors dated 21 November 2011 which referred to the requirement for completion on 1 December 2011 and the possibility of a notice to complete. The email also said: "Our client relies on the terms of the contract but reserves her rights with regard to amendments made without the authority and without authority from this firm and in that regard, a copy of this email is being sent to the agent." 33On 23 November 2011, the respondent's solicitors wrote to the appellants referring to their obligation under the contract to tender a transfer at least fourteen days before the due date for completion and noting that that obligation had not been performed. The solicitors enclosed a transfer they had prepared and invited the appellants to have it stamped and to re-submit it for signature by the respondent. The letter also said: "Pursuant to the terms of the Contract, settlement is due to take place on or before 1 December 2011. Please provide us with the enclosed Transfer duly marked by return in anticipation of settlement together with a settlement statement as at 1 December 2011." 34A concluding paragraph of the 23 November 2011 letter stated that settlement would take place at the solicitors' own office as they held the certificate of title; and invited contact by telephone "to arrange a mutually convenient time to settle on 1 December 2011." 35The first appellant wrote to the respondent's solicitors on 1 December 2011 saying that settlement "will not be occurring today" and that he was arranging to have a transfer presented for stamping. 36Later on the same day, the first appellant wrote again to the solicitors saying that a bank cheque for the balance of the deposit had just been delivered to the agent and that the purchasers "anticipate settlement to occur within the next 14 days, as will be required." 37The notice to complete was served by the respondent's solicitors on that same day, 1 December 2011. 38The appellants thereafter retained solicitors and, on 14 December 2011, the respondent's solicitors wrote to those solicitors as follows: "We refer to our email and subsequent telephone conversation between Mr Macri of your office and Ms Antony of this office on Monday 12 December 2011. We confirm that the Vendor is ready willing and able to settle this matter on Friday 16 December 2011. As we have not received a settlement statement from you we enclose settlement statement whereby the adjustments have been made as at 1 December 2011 in accordance with clause 34(b) of the contract. The deposit has been deducted in the sum of 10% as the agent has confirmed that the agent now holds the 10% deposit. We confirm interest has been calculated at the rate of 12% per annum in accordance with line 5 of clause 34(b) of the contract signed by the Purchaser. We should be in a position to provide you with cheque details later today. Please contact Ms Antony to arrange a mutually convenient time to settle on Friday 16 December 2011 at our office as we hold the Certificate of Title and Discharge of Mortgage. Please confirm whether your client requests settlement take place at Espreon in order for your client to be able to stamp the Transfer at settlement. If settlement is to take place at Espreon would you please provide a separate cheque in the sum of $88.00 (inclusive of GST) made payable to Antonys Lawyers to cover settling outside our office." 39The settlement statement accompanying this letter included an item of $15,978.08 designated "INTEREST Purchaser allows 16 days @ 12% p.a. on $3,037,500.00" 40On 15 December 2011, the respondent's solicitors wrote to the appellants' solicitors giving details of the cheques required on completion. The aggregate of the cheque amounts corresponded with the final figure in the settlement statement. 41In a letter dated 15 December 2011 to the respondent's solicitors, the appellants' solicitors referred to the "purported" notice to complete and said: "We are instructed to dispute the validity of the Notice as to substance and form." 42The respondent's solicitors' response of the same day was that their client relied on the notice, which was considered valid, and that the respondent "remains ready, willing and able to complete the contract tomorrow, 16 December 2011." There was no attendance by the appellants to complete on that day. 43The respondent's solicitors' letter terminating the contract followed on 19 December 2011. Assessment of the facts 44The central submission made on behalf of the appellants is that the respondent was, at 1 December 2011, "in default" or "in breach" or not "innocent" or not "ready, willing and able" in the sense to which I have referred. Such a finding is said to be warranted by events before the date in question and strengthened and confirmed by evidence of subsequent events. 45The submission is that the respondent had made it clear, as at 1 December 2011, that she would complete in the future only if the moneys tendered by the appellants included interest from the period after 1 December 2011 calculated at the rate of 12 per cent per annum, whereas the contract contemplated interest at only 8 per cent per annum. 46Relevant matters pre-dating 1 December 2011 are the letters of 14 November 2011, 17 November 2011, 21 November 2011 and 23 November 2011 (see [29] to [34] above). Even assuming that these reflected a position that still pertained at 1 December 2011, they did not convey anything warranting a conclusion that the respondent would not, on the date fixed by her notice to complete, duly deliver title in return for the balance of purchase moneys calculated in accordance with the contract, whatever its true construction might be. By the letter of 14 November 2011, the respondent's solicitors merely raised a question regarding authority for handwritten alterations and reserved their client's rights in that respect. By the letter of 17 November 2011, the first appellant stated the appellants' position on the matter. The respondent's solicitors, in the reply of 21 November 2011, again reserved their client's rights concerning the matter of handwritten alterations but, significantly, stated that the respondent "relies on the terms of the contract". By the letter of 23 November 2011, the respondent's solicitors noted the appellants' default in the matter of the tendering of a transfer and invited the appellants, as purchasers, to submit their calculation of the amount due on completion (which the appellants did not do). In two parts of the letter of 23 November 2011, the respondent's solicitors referred to requirements of the contract in terms making it clear that their client continued to acknowledge the applicability of the contract. 47In none of this correspondence in the lead-up to service of the notice to complete on 1 December 2011 was there any form of disowning or rejection of the contract by the respondent or any intimation that she would refuse to perform at completion in the way that the contract required her to perform. In particular, the respondent's solicitors' letter of 23 November 2011 made it clear that their client adhered to the contract and wished to see it completed on the specified date of 1 December 2011. They even went to the extent of preparing a transfer and sending it to the respondents with a request that they have it stamped. These were things that the contract required the appellants to do without prompting or assistance by the respondent. 48No aspect of the respondent's conduct before 1 December 2011 warranted a finding that the respondent was, as at 1 December 2011, otherwise than firm in her commitment to the contract and ready, willing and able to give title on completion in return for the balance of purchase moneys calculated in accordance with the contract. Nor did the whole of that conduct, viewed together, warrant any such finding. The primary judge was correct in reaching that conclusion. 49The appellants then refer to events after 1 December 2011. They say that evidence concerning those events warranted a finding that, as at 1 December 2011, the position the respondent in truth took was not as the evidence already mentioned indicated; and that she had in reality disowned her obligations. Particular reliance is placed on the letter of 15 December 2011 and the accompanying settlement statement which included interest at 12 percent per annum. The settlement statement and its relevance 50It is necessary to say something about the matter of calculation and submission of settlement figures. 51The contract is silent on the question of which party is to calculate the net sum payable on completion. Standard conditions 14.1 to 14.8 deal, as I have said, with apportionment of outgoings and other items. They also deal with certain mechanical aspects of adjustment and payment relevant to completion. But they say nothing about the process by which the parties are to come to a shared view as to the amount to which the contracted obligation of payment in cash on completion extends. 52In "The Law of Vendor and Purchaser" published in 1964, R M Stonham suggested that the preparation and submitting of a settlement statement is entirely a matter of practical convenience. The learned author said at para 1850: "It will facilitate settlement on completion, if one of the parties submits to the other an adjustment sheet just prior to settlement, so that any possible dispute regarding the final figures may be settled before the day of completion." 53P J Butt, at para 16.70 of "The Standard Contract for Sale of Land in New South Wales" (second edition, 1998), refers to the process of calculation and submitting of settlement figures. He notes that, in Paclyn Pty Ltd v GP Harris Real Estate Pty Ltd (1987) 4 BPR 9267, Young J "implied that the obligation to provide settlement figures falls on the vendor, at least where the vendor is insisting that the purchaser complete as required by a notice to complete"; while in Blacktown City Council v Fitzgerald (1990) 6 BPR 13409, Cohen J "recognised the usual conveyancing practice which is for the purchaser to provide the settlement figures". Dealing with a situation where the vendors had given a notice to complete, Cohen J said at 13414: "The solicitors for the [vendors] were entitled to consider not only positive statements of intention but a failure to carry out usual conveyancing procedures in order to gauge if there was an intimation by the [purchaser] that it would not be attending on settlement. The assessment was that in the absence of the usual practices having been carried out the [vendors'] solicitors would not be attending on settlement. That assessment proved to be true. The failure by the [purchaser's] solicitors to give figures in the usual way was in fact as well as in theory an indication that they would not be in attendance. ... In my opinion the failure to carry out usual conveyancing steps was an indication that the [purchaser] would not be represented at the proposed settlement. The [vendors] did not attend that settlement, not because they were unwilling or not ready to complete but because the failure of the [purchaser's] solicitors to carry out usual steps was a clear intimation that they would not be attending." 54Professor Butt also noted that it has been held in England that there is no obligation on either party to provide settlement figures but that since it is the purchaser who is required to tender the correct amount, it is the purchaser who carries the duty of making the calculation. He referred to Carne v Debono [1988] 1 WLR 1107 and Schindler v Pigault (1975) 30 P & CR 328 at 335. 55In Carne v Debono, Sir Nicholas Browne-Wilkinson V-C, said (at 1112), with the concurrence of Stuart-Smith LJ: "Although it is a customary step in conveyancing procedure that completion statements should be sent and agreed so that the parties should be clear well in advance of the date of completion what their respective obligations are, so far as I am aware, that is merely a matter of practice and not of law. So far as the authorities drawn to our attention are concerned, there is no legal obligation on a solicitor to provide a settlement statement." 56His Lordship also said: "There being no contractual obligation to provide a completion statement, in my judgment, it is not a repudiation by the vendor if in the settlement statement he asks for more than that to which he is entitled. So to hold would give rise to great disputes in vendor/purchaser matters since the exact calculation of the purchase money is often a matter of some difficulty. The completion statement is often the subject of negotiation between the parties to arrive at the correct figure." 57On this view, submission of a settlement statement by one party entails no more than a request for confirmation (or otherwise) that the receiving party agrees with the calculation set out in the statement. 58Reference should also be made to the recent decision of the English Court of Appeal in Oakglade Investments Ltd v Dhand [2012] EWCA Civ 286 (13 March 2012) where, on the particular facts, a different view was taken of the significance of a settlement statement. In that case, there were several contracts between the same parties. The vendor served notices to complete on 5 August 2004. Previously, on 25 June 2004, the vendor had delivered settlement statements indicating sale prices greater than those which the purchaser considered payable under the contracts (the case was one of prices calculated according to a formula, not straightforward lump sum prices). When the purchaser did not complete on the day fixed by the notices to complete, the vendor purported to rescind and to forfeit the deposit. It was held both at first instance and on appeal that the notices to complete were of no effect. 59The trial judge's opinion was that the vendor was not ready to complete the contracts according to their terms since, on their correct construction, the contracts required payment of the lower price calculated by the purchaser; and the vendor, by its earlier submitting of the settlement statements, had shown a willingness to complete only upon payment of the higher sums set out in those statements. 60The English Court of Appeal reached the same conclusion by somewhat different reasoning. I quote from the judgment of Mummery LJ (with whom Richards LJ and Rimer LJ agreed) at [29]: "The focus of the question whether the notices to complete were valid must turn on the object and terms of those notices construed in their contractual setting. The notices required Mr Dhand to complete contracts different from the contracts that he had in fact entered into with the defendants. That is because the prices that the defendants were requiring him to pay for the Properties according to the settlement statements, which were followed by the notices, were different from the prices that he had in fact agreed to pay. The prices were based on what the defendants wrongly alleged were successful bids by him at the auction on 24 May to buy the Properties at increased reserve prices rather than on what were stated to be the settled prices in the Underwriting Agreements of 21 May." 61The important finding in the Oakglade case is that the vendor had, by delivery of settlement statements before the service of notices to complete, demonstrated that it adhered not to the contracts that the court found had been made but to non-existent contracts at higher prices. 62In Oakglade, therefore, the forwarding of settlement statements by the vendor was seen to entail more than a mere request to confirm or correct the vendor's calculation. Decision on the central issue 63I return to the present case. The hearing before the primary judge proceeded on the basis of the "concession" that interest was chargeable under special condition 34(b) at the rate of 8% per annum, not 12% per annum. The settlement statement submitted by the respondent's solicitors on 14 December 2011 was prepared on the basis that the contracted rate was 12%. The settlement statement therefore did not accord with the terms of the contract as later accepted by both parties for the purposes of the proceedings. 64Two possibilities arise regarding the message that the respondent should be seen to have conveyed by submitting the settlement statement on 14 December 2012. The first is that the respondent was merely seeking confirmation or correction of her calculation as set out in the statement. If that is the correct characterisation, the forwarding of the settlement statement did not indicate intended departure from a contract in the terms ultimately accepted by the respondent for the purposes of the proceedings (that is, with a provision for interest at 8%, not 12%) 65The other possibility is that submission of the settlement statement went beyond an implied request for confirmation or correction. This is because of what was said in the covering letter: "We confirm interest has been calculated at the rate of 12% per annum in accordance with line 5 of clause 34(b) of the contract signed by the Purchaser." 66There was here an explicit statement that interest at 12% was "in accordance with" the relevant provision of the contract and arguably, therefore, an adoption of the 12% version as the correct and applicable version. 67For the practical reasons stated by the Vice-Chancellor in the passage in Carne v Debono set out at [56] above, a court should be very slow to conclude that a party who delivers a settlement statement thereby intends to adopt a particular construction of the contract unequivocally and to the exclusion of all other possibilities. But even if, in this case, the respondent should be regarded as having embraced a view of the contract at odds with the "concession", that had no effect upon the validity of the notice to complete. Any commitment to an incorrect version of the contract had not been communicated by the respondent before service of the notice to complete. The present facts are different, in that respect, from those of the Oakglade case. The things that the respondent had done before serving the notice to complete have already been identified. They are set out at [29] to [34] above. She had raised a question about the efficacy of the handwritten amendments and reserved her rights in that respect. She did not adopt a position that was wedded to 12% rather than 8%. In fact, in the letter of 21 November 2011, her solicitors said that she relied on the terms of the contract - thus implying that she accepted the contract, whatever its true construction might be. The notice to complete her solicitors served, unlike the notice in the Neeta (Epping) Pty Ltd case, did not refer to any interest component or imply a willingness to complete only if interest not properly payable was in fact paid. 68The first positive assertion by the respondent that interest was payable at the higher rate was in the settlement statement sent on 14 December 2011 by her solicitors to the solicitors who were by then acting for the appellants. That document was delivered some thirteen days after service of the notice to complete and two days before the date on which the notice required that completion occur. The fact that, at that point, the respondent took a position regarding interest that was at odds with the position accepted by her at trial as the true contractual position did not somehow change retrospectively the unexceptionable stance she had taken at and before the time of service of the notice on 1 December 2011. 69The primary judge concluded that the respondent did not, at the time of service of the notice to complete or beforehand, require anything more than the contract required and that she was not in default when the notice was served. That correct conclusion would be in no way altered by the circumstance that the settlement statement delivered some thirteen days later was at odds with the true effect of the contract. 70It is unnecessary, on this appeal, to canvass the ramifications of the respondent's adoption and communication on 14 December 2011 of any firm commitment to a wrong view of the amount of interest payable on completion. That is a matter that did not arise before the primary judge and does not arise on appeal. Another matter 71The discussion to this point is sufficient to dispose of all matters raised on appeal except one. The remaining matter comes from a part of the primary judge's reasons already quoted, as follows: "Furthermore, upon receiving the notice, it was for the defendants to comply which, of course, involved payment of interest at 8 percent. In my opinion the defendants' failure to comply entitled the plaintiff to terminate under clause 9 of the contract. Furthermore, there was no evidence to show that the defendants were ready, willing, and able to complete. To the contrary, in my view the evidence of failure to comply with their obligations under the contract until ultimately terminated evidenced their intention to repudiate." [emphasis added] 72The appellants refer to the italicised part of this passage and make the submission that it is irrelevant to the question whether one party is entitled to give a notice to complete that the other party is or is not ready, willing and able to complete. 73The correctness of that submission may be accepted. But it does not follow that the primary judge's conclusion on the claim before him was therefore flawed. At most, the primary judge paid attention to an irrelevant matter in support of a legal conclusion already correctly and sufficiently reached. 74This is not a case in which a judge called upon to exercise some discretion did so in reliance, in part, on an extraneous consideration. The question before the primary judge involved assessment and characterisation of the respondent's conduct. The irrelevant matter concerning the appellants' conduct in no way affected that assessment. Disposition 75The orders I propose are: 1.Appeal dismissed. 2.That the appellants pay the respondent's costs of the appeal. 76HOEBEN JA: I agree with Barrett JA and the orders which he proposes. ********** 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. Decision last updated: 03 July 2012