Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd [2016] NSWCA 32 (7 March 2016)

In conveyancing practice, the receipt of a Notice to Complete from a vendor is a relatively common event, and failure to comply with a Notice to Complete may justify the termination of the contract by the vendor, causing the purchaser to forfeit their deposit.

The Court of Appeal (Beazley P, Sackville AJA and Emmett AJA) recently considered this issue in the context where a vendor had issued a Notice to Complete, but at the nominated time for settlement, was unable to settle because the transfer had not been executed by the vendor as required by the Corporations Act 2001 (Cth).  Following the nominated time for settlement, the vendor purported to issue a notice of termination.

The Court held that through its failure to execute the transfer, the vendor was not "ready, willing and able" to complete.  This was despite the fact that the contract imposed the obligation to prepare the transfer on the purchaser.  The Court commented generally on the requirements for a valid Notice to Complete:

"[33] It is a fundamental principle of land law that a party who seeks to terminate a contract for breach of an essential stipulation, must itself be ready, willing and able to complete. As was explained by Reynolds JA in McNally v Waitzer [1981] 1 NSWLR 294 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”. See also Hutley JA at 303. The principle is well established and it is not necessary to review the authorities: this has been done many times in other cases. It is sufficient for the Court to refer to the following.

[34] In Malouf v Sterling Estates Development Corporation Pty Ltd [2002] NSWSC 920 Young CJ in Eq (as his Honour then was) observed, at [36]:

“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.” (emphasis added)

This statement was not disturbed on appeal: Sterling Estates Development Corporation Pty Ltd v Malouf [2003] NSWCA 27858 NSWLR 685 and has been approved in this Court: see Carrapetta v Rado [2012] NSWCA 202; 16 BPR 30, 997 at [25].

[35] To the same effect is the statement of Kourakis J in Kraguljac v A & B Property Developments Pty Ltd (No 2) [2012] SASC 1 at [92]. His Honour, after reviewing the authorities, observed, relevantly:

“... the effect of these authorities is as follows: ... 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.” (emphasis added)"