Jaswil Properties Pty Ltd ATF Jaswil Unit Trust v Barrak Corporation Pty Ltd

1. [1]

   By Summons filed on 6 March 2015 the plaintiff, Jaswil Property Pty Ltd, as trustee for the Jaswil Unit Trust, seeks a declaration that the contract dated 23 October 2014 (the Contract) between it, as purchaser, and the defendant, Barrak Corporation Pty Ltd, as vendor, of land at 63 Victoria Road, Parramatta (the Land) has not been terminated. The plaintiff also seeks an order that the defendant specifically perform the Contract by doing all things necessary to convey the Land to it. Alternatively the plaintiff seeks the return of the deposit.

2. [2]

   Although not pleaded separately the plaintiff seeks an order that if the Contract was validly terminated, it should be granted relief against forfeiture.

Background

1. [3]

   The solicitors acting for the defendant on the conveyance were Barrak Lawyers, the principal of which is Benjamin Barrak. Mr Barrak is also the sole director and secretary of the defendant. The solicitors acting for the plaintiff on the conveyance were Legal One Services Pty Ltd (Legal One). The practitioners of Legal One with the carriage of, or involvement in, the matter were Merisa Raic, Alison Eid and Samira Saab.

2. [4]

   The Contract provided for completion on 30 January 2015. The Land includes a house and garage and was sold subject to an existing tenancy. The Residential Tenancy Agreement annexed to the Contract is between the defendant, as landlord, and Ms Najat Barrak, Mr Barrak’s sister, as tenant. The Tenancy Agreement was for a three month period starting on 19 October 2014 and ending on 19 January 2015 for a weekly rental of $400 payable in advance. The Notes to the Tenancy Agreement provide that when a fixed term ends, the agreement continues in force on the same terms as a periodic agreement. A periodic agreement may be “ended” by written notice of termination. If it is ended by the landlord, the tenant must be given 90 days’ notice.

3. [5]

   The provisions of the Contract relevant to the issues in the proceedings are as follows:

4. [6]

   The expression “Normally” is defined in clause 1 of the Contract as “subject to any other provisions of this contract”. The Contract also provides:

5. [7]

   The Further Clauses annexed to the Contract include the following:

6. [8]

   The Land is the subject of a Development Approval granted by Parramatta City Council. The parties agreed in the Further Clauses that by virtue of completion all right, title and interest in the Development Application, the plans and other documents relating to the Development Application would vest in the plaintiff (cl 53).

7. [9]

   The plaintiff is a developer and intends to develop the Land in accordance with the Development Consent. The plaintiff’s funding of $4.388 million for the development was approved by Westpac on 28 January 2015. The proposed development is for apartments, ten of which the plaintiff has sold “off the plan” (a pre-requisite for its funding from Westpac). Those contracts are subject to the National Rental Affordability Scheme with a sunset date of thirty six months from the date of each contract. The Scheme provides incentives for investors to build and rent dwellings to low and moderate income households, at lower than market rates. The construction of the strata lots must be completed by 20 November 2015 for the properties to be eligible to participate in the Scheme.

8. [10]

   The directors of the plaintiff signed the Contract recording that they had done so “pursuant to s 127 Corporations Act 2001”. Mr Barrak’s signature appeared on the Contract for the Vendor. However there was no identification of the signatory nor was there any indication as to the capacity in which he had signed the Contract.

9. [11]

   On 24 October 2014 Legal One wrote to Barrak Lawyers enclosing a signed Transfer “for signature by the vendor and holding upon escrow for stamping at settlement” (the First Transfer). It was signed by Ms Raic as solicitor for the purchaser.

10. [12]

    The Form of Transfer contained nine sections: “(A) Torrens Title” that recorded the Folio Identifier number of the Land 1/997613; “(B) Lodged By” included space for the identification of the name and details of the lodging party; “(C) Transferor” recorded the defendant’s name (although misspelt as “Barrack”): “(D) Consideration” and “(E) Estate” recorded the statement, “The transferor acknowledges receipt of the consideration of $1,925,000.00 and as regards the abovementioned land transfers to the transferee an estate in fee simple”; “(F) Share Transferred” recorded “100%”; “(G) Encumbrances (if applicable)” was left blank; “(H) Transferee” recorded the plaintiff’s name; “(I) Date” was left blank; and “(J)”, the section for execution, included on the left hand side the following:

11. [13]

    The “note* below” was “s117 RP Act requires that you must have known the signatory for more than 12 months or have sighted identifying documentation”. On the right hand side of the Transfer adjacent to the witness section there appeared the following:

12. [14]

    Underneath this section of the Transfer on the right hand side there appeared the following:

13. [15]

    The transferee’s section was signed by Ms Raic as solicitor for the plaintiff.

14. [16]

    On 28 October 2014 Mr Barrak wrote to Ms Raic pointing out that the defendant’s name had been misspelt and requesting her to advise if she wished Barrak Lawyers to “amend and initial the amendment” or whether she would prefer to provide Barrak Lawyers with a “fresh Transfer”. On the same day Ms Raic advised that Legal One would provide a “fresh Transfer”.

15. [17]

    In another letter dated 24 October 2014 Legal One wrote to Barrak Lawyers enclosing the “signed amended Transfer for signature by the Vendor and holding upon escrow for stamping at settlement” (the Second Transfer). It was in exactly the same terms as the First transfer except that it corrected the spelling of the defendant’s name. It was signed by Ms Raic as solicitor for the plaintiff.

16. [18]

    On 23 January 2015 Ms Saab telephoned Mr Barrak and advised him that Legal One had received the plaintiff’s cheque for payment of stamp duty and that to avoid penalty interest, she would like to stamp the Transfer prior to settlement. She asked Mr Barrak whether he was happy for a new stamped transfer to be sent. Mr Barrak said that he had “no problem” with that occurring.

17. [19]

    On 23 January 2015 Ms Saab printed the Transfer saved on Legal One’s electronic file and then stamped the Transfer through the Electronic Duties Return System online and sent it to Barrak Lawyers (the Third Transfer). It was in the same terms as the Second Transfer. Ms Saab signed the Transfer and forwarded it to Barrak Lawyers as the “signed and stamped Transfer for signature by the Vendor and holding upon escrow for settlement”.

18. [20]

    The parties were clearly working towards a settlement on 30 January 2015. On 28 January 2015 at 12.03 pm Legal One confirmed that settlement was booked at 2.00 pm on 30 January 2015 at premises in George Street, Sydney. Legal One enclosed a Settlement Statement recording that the amount payable by the plaintiff was $1,734,167.36 and requested Barrak Lawyers to advise as to how the amount was to be paid.

19. [21]

    On 29 January 2015 Barrak Lawyers wrote to Legal One enclosing a Settlement Adjustment Sheet taking into account, inter alia, a vendor’s allowance for one day of rental for the period 30 January 2015 to 31 January 2015 of $57.14. Barrak Lawyers directed cheques to be paid to various entities including $489,170.42 to AMP Bank Limited.

20. [22]

    At 2.02 pm on Thursday 29 January 2015 Legal One wrote to Barrak Lawyers advising that unfortunately the plaintiff’s lender was not in a position to settle on Friday 30 January 2015 and that Legal One would contact Barrak Lawyers “early next week to reschedule settlement and provide updated settlement figures”.

21. [23]

    On Monday 2 February 2015 the defendant served a Notice to Complete on the plaintiff in the following terms:

22. [24]

    On 12 February 2015 the respective solicitors had a telephone discussion regarding which Barrak Lawyers’ file note recorded:

23. [25]

    On 12 February 2015 Legal One wrote to Barrak Lawyers confirming that settlement had been booked at 2.30 pm on Monday 16 February 2015 enclosing the Settlement Statement and requesting Barrak Lawyers to provide the cheque directions. On the same day Legal One emailed Barrak Lawyers advising that the Settlement Statement did not include any penalty interest and asked that the defendant waive the penalty interest because the plaintiff had been delayed by its Bank.

24. [26]

    On 13 February 2015 Barrak Lawyers advised Legal One that although the defendant sympathised with the plaintiff, it had incurred holding costs and interest charges by its own banks and it was not willing to waive the penalty interest. That letter enclosed the Settlement Statement and included “I understand that all is in readiness for settlement. However, if you have any query, or require any amendments to my settlement statement, please do not hesitate to contact my office”. The cheque directions on this occasion included a cheque for AMP Bank in the amount of $491,000. It also included an amount of $6,455.41 for rental for seventeen days.

25. [27]

    On 13 February 2015 Mr Barrak wrote to Ms Raic by email in terms that included the following:

26. [28]

    By email of 12.01 pm on 16 February 2015, Mr Barrak wrote to Legal One in terms that included the following:

27. [29]

    The letter referred back to Mr Barrak’s email of 13 February 2015 and advised that Barrak Lawyers now acted for “the tenant”. It advised that after settlement Legal One was to direct any correspondence to the tenant to Barrak Lawyers’ office. It advised that the tenant required the toilet to be removed from the property within seven days and that access arrangements were to be made with Barrak Lawyers. It also advised that failing this, Barrak Lawyers would organise its removal without further notice. It also advised that the tenant did not consent to any excavation and construction work or the placement of construction machinery on the property. The letter then purported to put Legal One “on notice” that a break and enter had occurred in the last week with the double garage at the rear of the property being accessed. The letter then particularised certain alleged damage that had been repaired at the vendor’s expense such as not to delay settlement.

28. [30]

    Barrak Lawyers advised that in light of these matters, no access was to be gained to the property without prior arrangement with its office. It also advised that the “tenant intends to remain in property as per the lease”; and that the lease attached to the Contract was to be complied with in accordance with clause 24 of the Contract. The letter then concluded:

29. [31]

    On 16 February 2015 Ms Raic wrote to Mr Barrak by email at 12.28 pm asking him to confirm that he was holding a rental bond in respect of the tenant and informing him that a Transfer of Bond Form would be required at settlement. By email in response at 12.33 pm Mr Barrak advised that the defendant had chosen not to take a Bond and therefore there were no Bond Forms to deliver at settlement.

30. [32]

    Mr Barrak prepared some “Settlement Instructions” setting out what was to be received from AMP; what was to be handed to Legal One; what was to be received from Legal One; and what was to be handed to AMP at settlement. One of the items to be handed to Legal One was the “Transfer duly executed and stamped (attached)”. Mr Barrak also prepared letters dated 16 February 2015 signed by him on Barrak Lawyers letterhead. These included letters to the agent, directing it to release the keys to the plaintiff; and to the tenant to account to the plaintiff for rental from 22 February 2015.

31. [33]

    On 16 February 2015, Peter Pserras attended the settlement on the plaintiff’s behalf. Mr Pserras is a settlements agent employed by Sydney Legal Agents. Also present was Ian Bridges, a senior executive employed by HWL Ebsworth Lawyers, representing Westpac, the plaintiffs’ lender. Mr Bridges had obtained bank cheques as directed by Legal One. Mr Bridges and Mr Pserras had all things necessary for the plaintiff to effect settlement, namely cheques totalling $1,744,735.69 and an order on the agent authorising the release of the deposit once settlement had been effected.

32. [34]

    The agent who attended on the defendant’s behalf was in fact Ms Barrak. Mr Pserras observed that the Transfer had been signed by an unidentified individual rather than by Barrak Corporation. Mr Pserras said to Ms Barrak “this is signed wrong by the Vendor”. Mr Pserras said that Ms Barrak then said that the “purchaser’s solicitor should have advised us that this was the case”. After confirming with Mr Bridges that Westpac would require the signature of the transferor to be pursuant to the Corporations Act 2001 (Cth), Mr Pserras said to Ms Barrak “This is easily fixed, just ring your principal and he can authorise you to hand write the attestation clause into the transfer”. Mr Bridges had agreed with Mr Pserras that this amendment would be acceptable.

33. [35]

    Ms Barrak was then observed taking her mobile phone and going out into the corridor. After a couple of minutes Ms Barrak returned and said “I have left a message for the solicitor to let him know that the Transfer is signed in the wrong form. I am busy and I need to leave. I have things to do”. Mr Pserras asked Ms Barrak to “stick around as this can easily be fixed”. He also advised Ms Barrak that Legal One would keep trying to contact the defendant’s solicitor. Ms Barrak then left her telephone number and advised that if they sorted it out they could ring her and she would come back. Efforts were made throughout the afternoon to make contact with Mr Barrak. They were unsuccessful.

34. [36]

    Ms Raic wrote to Mr Barrak by email at 3.21 pm on 16 February 2015 in the following terms:

35. [37]

    At 3.40 pm Ms Raic wrote again to Mr Barrak in the following terms:

36. [38]

    That same afternoon Ms Raic responded to Mr Barrak’s correspondence of earlier that day relating to the alleged “break and enter” at the property. That email was the in the following terms:

37. [39]

    At 9.01 am on 17 February 2015 Mr Barrak wrote by email to Ms Raic advising her that he had received her emails, that he was “urgently working on them” and that he would get back to her “this morning, as soon as possible”. Later that morning Ms Eid and Ms Raic (on speaker phone) had a conversation with Mr Barrak in the following terms:

38. [40]

    On 17 February 2015 Mr Barrak wrote to Ms Raic by email at 10.15 am. In this rather lengthy email Mr Barrak recited the history in relation to each of the Transfers that had been served on his office. Mr Barrak referred to each of the Transfers containing “errors” and continued:

39. [41]

    In a file note (Ex A) of a conversation between Mr Barrak and AMP’s agent, FMS, there is reference to a three day waiting period suggesting Friday “at earliest”. There was also reference to the need to get in touch with AMP directly to obtain a discharge and the figures. That file note also included a note of a conversation with AMP who had provided an “indicative figure” of $490,426.44 as at 17 February 2015.

40. [42]

    Later in the morning on 17 February 2015 at 10.51 am Mr Barrak wrote a further email to Ms Raic in relation to her email of 16 February 2015 suggesting that the cheque directions should be kept the same “in the circumstances”. Mr Barrak claimed that he did not understand what Ms Raic meant by that expression and said as follows:

41. [43]

    Mr Barrak went on to refer to some discussions he had with Ms Raic during the morning, noting that Ms Raic had not agreed to acknowledge that the purchaser had submitted a Transfer which was wrong “as to form” and that this caused the settlement to be aborted. The email included the following:

42. [44]

    At 11.30 am Ms Eid attended Barrak Lawyers with the fresh Transfer (the Fourth Transfer) and a covering letter confirming that settlement was booked at 2.30 pm that day. In section (J) on the left hand side of this Transfer the following appeared:

43. [45]

    On the right hand side of the Transfer adjacent to this section there appeared the following:

44. [46]

    Underneath this section there appeared the same execution provisions for the transferee as in the previous Transfers, executed by Ms Raic, as solicitor for the plaintiff.

45. [47]

    At 2.26 pm Mr Barrak wrote a further email to Ms Raic in the following terms:

46. [48]

    At 2.34 pm Ms Eid wrote to Mr Barrak in the following terms:

47. [49]

    In a short email in response at 2.42 pm Mr Barrak wrote to Ms Eid:

48. [50]

    In a lengthy email at 4.41 pm on 17 February 2015 Mr Barrak advised Ms Eid and Ms Raic that the defendant contended that its Notice to Complete “stands valid and is considering its position in light of the above, and the history of this matter”.

49. [51]

    On 18 February 2015 Legal One wrote to Barrak Lawyers in response to the email as follows:

50. [52]

    On 20 February 2015 the plaintiff served a Notice to Complete on the defendant stating that it was ready, willing and able to complete and required the defendant to complete on or before 10 March 2015 and making time of the essence for the completion. The plaintiff appointed 3.00 pm on 10 March 2015 at the office of GlobalX for the completion.

51. [53]

    There was lengthy correspondence from Mr Barrak to Ms Raic on 20 and 24 February 2015 in which Mr Barrak reargued the matter and sought various particulars from the plaintiff both in relation to the Transfer and the arrangements for settlement and why it would not accept responsibility for the error in the Transfer. In the latter of those letters Mr Barrak referred to Strickland v Grieve (1996) NSW ConvR 55-762 contending that it stood for the proposition that a party causing delay in settlement must allow a reasonable period of time after curing the breach for the other party to settle. Mr Barrak complained that the timeframe from 16 to 17 February 2015 was not reasonable.

52. [54]

    On 26 February 2015 the defendant served a Notice of Termination of Contract in the following terms:

53. [55]

    The proceedings were commenced on 6 March 2015 and were listed in the Duty List for hearing on 27 March 2015. The matter was heard on 27 March 2015 when Mr AG Rogers, of counsel, appeared for the plaintiff and Mr M Rollinson, of counsel, appeared for the defendant. Judgment was reserved on that day. However the parties were granted leave to make a short written submission in respect of the claim for relief against forfeiture by no later than 2 April 2015.

54. [56]

    The defendant contends that in failing to include in the Third Transfer the words that ultimately appeared in section (J) of the Fourth Transfer, the plaintiff failed to comply with its obligations under clause 4.1 of the Contract. The plaintiff contends that it complied with its obligation under clause 4.1 of the Contract.

55. [57]

    There is no issue that under clause 4.1 of the Contract the plaintiff, as purchaser, had the contractual responsibility to prepare the Transfer and serve it on the defendant, as vendor. The provenance of this provision is the early practice of the purchaser preparing the conveyance in respect of old system land that was adopted as a standard condition of sale in pro forma Contracts for the Sale of Land: Voumard: The Sale of Land (LBC Information Services, 5th Ed) [13.120]; Sugden, Vendor and Purchaser (14th Ed, 1862) 561.

56. [58]

    The exclusive method of transferring Torrens system land is by the approved form duly registered: Crowley v Templeton (1914) 17 CLR 457 at 463; s 3(1); s 46(1) of the RP Act. The provisions of ss 127 to 129 of the Corporations Act are taken to apply to the execution of instruments under the RP Act as if those provisions formed part of the RP Act: s 106. The Registrar-General has power under the RP Act to refuse to register or reject any dealing lodged for registration that does not comply with any requirements made by or under the Act: s 39(1)(A).

57. [59]

    It is impermissible for a vendor’s solicitor to execute the Transfer on behalf of the vendor: Baalman & Wells Land Titles Office Practice (Thomson Reuters) (at service 131) [250.550-250.600]. In a purchase from a vendor that is a corporation, the purchaser clearly has two choices in preparing section (J) of the Transfer. It may be prepared for execution without the common seal of the corporation pursuant to s 127(1) of the Corporations Act; or it may be prepared for execution with a common seal pursuant to s 127(2) of the Corporations Act. If, as here, the vendor is a proprietary company that has a sole director who is also the sole company secretary, and the corporation intends to execute the Transfer without the common seal, then it is to be signed by that director: s 127(1)(c). If it is to be signed with the common seal affixed to the Transfer, that director is to witness the fixing of the seal: s 127(2)(c).

58. [60]

    An assumption may be made that the Transfer has been duly executed by the company without the common seal, if it appears to have been signed in accordance with s 127(1) of the Corporations Act. For the purposes of making such an assumption, it may also be assumed that a person occupies both offices of sole director and secretary if that person “states next to their signature that they are the sole director and sole company secretary of the company”: s 129(5) of the Corporations Act.

59. [61]

    It will be necessary for the purchaser to know in advance of the preparation of the Transfer, which of the two alternatives the vendor intends to utilise in executing it. If the Transfer is silent as to the name and/or authority of the signatory, then it is difficult to see how assumptions could be made that the Transfer had been “duly executed by the company”: s 129(5) or (6) of the Corporations Act.

60. [62]

    The first three transfers forwarded to the defendant made no mention of either the fixing of the common seal of the defendant witnessed by Mr Barrak as sole director and secretary in accordance with s 127(2)(c) of the Corporations Act; or of the execution by Mr Barrak as sole director and secretary pursuant to s 127(1)(c) of the Corporations Act. It merely provided for the signature of the Transferor and the witnessing thereof.

61. [63]

    In Wilson v Kingsgate Mining Industries Pty Ltd (1973) 2 NSWLR 713 the vendor’s solicitors had supplied particulars of the subject land to the purchaser’s solicitors and requested that they provide a “transfer for approval at your earliest convenience”. The purchaser’s solicitor forwarded a form of transfer, already stamped, not for approval, but for execution. When the relevant contracts for sale were rescinded one of the complaints made by the purchaser was that the vendor’s solicitors did not at any stage notify approval of the memorandum of transfer or the fact that it had been executed. Wootton J said at 725:

62. [64]

    The circumstances of the present case are different. There was no express suggestion that the purchaser’s solicitors were seeking “approval” of the form of Transfer forwarded to the defendant’s solicitor. On each occasion it was forwarded “for signature by the vendor”. However there was an indication to the plaintiff’s solicitors that the vendor did not approve of the form of Transfer because its name was misspelt. In other words it was not going to execute the Transfer in that form. However Mr Barrak did not advise the plaintiff’s solicitors of the manner in which the defendant intended to execute the Transfer or that section (J) of the Transfer contained an impediment to proper execution by the defendant.

63. [65]

    Clause 4.2 of the Contract required the defendant to provide to the plaintiff “any information needed for the form of transfer” that was not disclosed in the Contract. The “form of transfer” is that form approved by the Registrar-General, which includes section (J). Although in earlier years it may have been intended that such “information” was limited to the proper description of the property to be transferred, I am of the view that by reason of the reference to the “form of transfer” in clause 4.2, it includes any information that is needed to complete the form as approved by the Registrar-General. If a vendor is an individual, it may not be necessary to seek any additional information to prepare section (J) of the Transfer, so long as the full name of the vendor matches the name on the title. However, having regard to the alternative methods of execution available to a corporate vendor, it is necessary for the purchaser’s solicitors to ascertain that which will be used to execute the Transfer.

64. [66]

    The Contract was rather unhelpful as to the manner in which the defendant might execute the Transfer. It was signed on the front page by Mr Barrak and was witnessed by his sister, Ms Barrak. There was no reference to Mr Barrak’s name under his signature nor to the capacity in which he was signing the Contract. There was no reference to s 127 of the Corporations Act. On an Instrument annexed to the Contract setting out the terms of an easement intended to be created pursuant to s 88B of the Conveyancing Act 1919, Mr Barrak purported to witness the fixing of the common seal of the defendant (albeit that the common seal was not so affixed) with his signature, his name, his description as sole director, together with the company’s name all in handwriting. The Residential Tenancy Agreement annexed to the Contract provided for the “signature of landlord/agent” in the presence of a witness. The identity of the signatory on that agreement for the defendant is not at all clear.

65. [67]

    In those circumstances it was necessary for the plaintiff’s solicitors to enquire of the defendant as to the method it was going to adopt in executing the Transfer so that it could complete section (J) of the Transfer. Obviously should such an enquiry have been made the defendant had an obligation to provide that “information” to the plaintiff’s solicitors.

66. [68]

    In the conversation on the morning of 17 February 2015 with Mr Barrak the plaintiff’s solicitors accepted that they “may have prepared a transfer for signature by a Transferor who was an individual”. That was clearly a mistake. The Fourth Transfer rectified that mistake.

67. [69]

    On the other hand, when Mr Barrak signed the Transfer, he did not identify himself by name or in a manner that would allow anyone to assume that the document had been “duly executed by the company”. If Mr Barrak had written his name under his signature and included the capacity in which he signed the document as sole director and secretary, the assumption under s 129(5) of the Corporations Act could have been made. However Mr Barrak signed the Transfer in the form that it was presented to him by the plaintiff and Ms Barrak witnessed it in the section as provided.

68. [70]

    Mr Barrak accepted that as a solicitor and as a director of the defendant he understood that the Transfer was an “important document” (tr 20). He said that he “intended to execute” the Transfer “in the name of the company” (tr 21). He gave the following further evidence in cross-examination (tr 21-23):

69. [71]

    In re-examination Mr Barrak gave the following evidence (tr 25):

70. [72]

    The first time that the plaintiff, through its agents, became aware that the Transfer had not been executed to enable the assumptions under the Corporations Act to be made that the company had “duly executed” the Transfer was when Ms Barrak presented it at settlement on 16 February 2015.

71. [73]

    I am satisfied that it was the plaintiff’s obligation to include in the “form” of Transfer the proper clause for execution by the defendant as a corporation. I am satisfied that it is a purchaser’s obligation to ascertain the manner in which execution is to occur so that the proper clause can be included in section (J) of the Transfer.

72. [74]

    The plaintiff and the plaintiff’s Bank were content to have the execution of the Transfer remedied by the insertion of words next to Mr Barrak’s signature recording that he had signed it pursuant to s 127(1)(c) of the Corporations Act. Ms Barrak said she was willing to return to the settlement venue and it appears that others present were willing to wait at the venue to see if the faulty execution could be remedied.

73. [75]

    Mr Barrak gave affidavit evidence that he did not become aware of the emails that were forwarded to him by the plaintiff’s solicitors at 3.21 pm, 3.31 pm and 3.40 pm on 16 February 2015 until “after business hours and could not action them until the next day”. He did not give evidence as to what he intended to convey by the expression “after business hours”. Nor did he give evidence as to how he “sighted” these emails or why it was that he could not “action” them until the following day.

74. [76]

    Mr Barrak did not give affidavit evidence of any telephone call or telephone message that was left for him by his sister at about the time of the settlement. In cross-examination he said that he was out of the office that afternoon although he did not give evidence about his whereabouts. He claimed that he had his telephone with him and that it was turned on at the time of settlement (tr 15-16). He said that he did not receive any communication from his sister between 2.30 pm and 3.30 pm that day (tr 17). He said that his sister had left a message for him on his voicemail (tr 17). However he did not give evidence as to when it was that he retrieved his sister’s voice message.

75. [77]

    He did not give any evidence about his usual, or any, practice, in checking his voicemail messages or how he is usually alerted to the existence of those voice messages. He was not asked whether he contacted his sister to see that settlement had been effected, or if not, why he would not have made contact with his sister in this regard. He did not give evidence about the content of the voice message other than that his sister had told him “about the problem that had arisen” (tr 17).

76. [78]

    It was not suggested to Mr Barrak that he did become aware of the problem with his signature at about the time of the settlement on the afternoon of 16 February 2015. It is rather unusual that a person who is acting as a director and solicitor for a company whose agent (and the tenant of the property) has attended the settlement of a significant sale of land on the company’s behalf, would not make contact with that agent, or indeed anyone, to ascertain whether settlement has been effected. However in the circumstances I must accept that Mr Barrak did not become aware that settlement had not occurred until “after business hours” on 16 February 2015.

77. [79]

    I think there were a number of factors affecting the settlement on 16 February 2015. One factor was that section (J) of the Transfer did not include the express provision for execution in accordance either with s 127(1)(c) or s 127(2)(c) of the Corporations Act. The second factor is that the defendant failed to “duly execute” the Transfer in accordance with the provisions of the Corporations Act. The defendant could have recorded Mr Barrak’s name under his signature with the words “sole director/secretary”. This would have been enough for there to have been an assumption that the document had been “duly executed” by the defendant. The signature witnessing Mr Barrak’s signature would have been unnecessary and would not have affected that assumption.

78. [80]

    The next factor was the inability of Ms Barrak and/or the plaintiff’s solicitors to make contact with Mr Barrak at the time of the settlement or for a reasonable period thereafter. The next factor is that during business hours on 16 February 2015 the defendant, by itself or through its solicitor, made no contact with anyone to ascertain what happened at the settlement.

79. [81]

    Settlement could have been effected on 16 February 2015 if the plaintiff had included in section (J) of the Transfer the execution clause for the Transferor that was in the Fourth Transfer. The Fourth Transfer, containing the correct form was not delivered to the defendant until 11.30 am on 17 February 2015, just 3 hours before the time that the plaintiff had fixed for settlement and 3 and a half hours before the expiry of the essential time stipulation.

80. [82]

    I am satisfied that both parties attempted to get ready to settle at 2:30 pm on 17 February 2015. Notwithstanding such short notice, Mr Barrak’s affidavit evidence was that he advised the plaintiff’s solicitors that the defendant would proceed on the basis of the previous day’s settlement figures as a “compromise” so that “we can all focus on settlement of the matter”. This was so notwithstanding Mr Barrak’s continued concern that the defendant should not be held responsible for the settlement being aborted the previous day.

81. [83]

    In cross-examination, Mr Barrak gave evidence that when he spoke to AMP on 17 February 2015 he advised that he would like to book settlement on that day at 2:30 pm and he needed “to escalate the matter” (tr 12). He said that he considered it to be his legal obligation to do the best he could in order to facilitate the request from the plaintiff to settle at that time (tr 13). He did not inform the plaintiff’s solicitors at any time that (having regard to AMP’s requirement of three clear days’ notice) he would be able to complete the purchase on 20 February 2015 rather than on 17 February 2015 (tr 13). He agreed that he could have organised a settlement with AMP on 20 February 2015, however he said that he was considering his position because the “notice to complete period had expired” (tr 13). He said that it was “whether the vendor wanted to facilitate that settlement” (tr 14). Mr Barrak said that he did not decide to terminate the contract until 26 February 2015 and gave the following evidence (tr 14):

82. [84]

    It was suggested to Mr Barrak in cross-examination that he did not wish to settle the Contract. Mr Barrak denied that this was so and gave evidence that he did not make a decision to terminate the Contract until 26 February 2015. He claimed that the defendant had to consider its position. There were unsatisfactory communications between the respective solicitors which included a rather unedifying allegation that the plaintiff had committed a criminal act of break, enter and steal. Although this material is very unsatisfactory, I am not satisfied that it establishes that Mr Barrak intentionally delayed the process on 17 February 2015 to ensure that the settlement could not occur.

83. [85]

    Notwithstanding the efforts made by the defendant, it was not possible for the outgoing mortgagee to be ready for settlement of the Contract before 3pm on 17 February 2015. The defendant submitted that the short time frame provided by the plaintiff from late on 16 February 2015 to 2.30 pm on 17 February 2015 was unreasonable. In this regard it relied upon the following passage of Strickland v Grieve where Young J (as his Honour then was) said at 55,860:

84. [86]

    The plaintiff had failed to comply with the completion date of 30 January 2015 provided for in the Contract. Both parties accepted that the Notice to Complete made time of the essence. The plaintiff knew that it had to complete the Contract by 3 pm on 17 February 2015. Once the time for settlement was fixed so close to the expiry of the time stipulated in the Notice to Complete there was a real risk that if a problem arose, the plaintiff may find itself unable to comply with the essential time stipulation. Of course it would depend on the nature of the problem. However a prudent purchaser, who has already failed to complete within the time provided for in the Contract, would be sensible to take heed of the need (as “rough rule of thumb”) for, at least some days’ notice to the vendor of a fresh settlement date. This is particularly so where, as here, the purchaser knows that the vendor is dependent, in part, on the availability of an outgoing mortgagee and had itself suffered delay by reason of the unavailability of the incoming mortgagee.

85. [87]

    Had the plaintiff planned the settlement the previous week and the problem was exposed, the defendant’s mortgagee could have had the three clear days to book the settlement and the parties would have been in a position to settle within the time period stipulated in the Notice to Complete.

86. [88]

    The plaintiff served a Transfer in the wrong form and the defendant signed it as it was presented it to it. I do not regard the time frame that was given to the defendant for settlement on 17 February 2015 as reasonable in the circumstances.

87. [89]

    Time was of the essence and the plaintiff was in default. On balance I am satisfied that the defendant was entitled to serve the Notice of Termination.

88. [90]

    It is now necessary to consider the plaintiff’s claim that it should be granted relief against termination of the Contract.

89. [91]

    The parties addressed the question of relief against the termination of the Contract in their written submissions filed on 31 March 2015, for the defendant, and on 2 April 2015, for the plaintiff.

90. [92]

    In Legione v Hateley, Mason and Deane JJ referred to the “rule” that it is only in “exceptional circumstances that specific performance will be granted at the instance of a purchaser who is in breach of an essential condition” (at 449). Gibbs CJ and Murphy J said that where parties have made time of the essence “the grant of relief against forfeiture as a preliminary to an order for specific performance will be exceptional” (at 429). In Stern v McArthur (1988) 165 CLR 489, Deane and Dawson JJ referred to the abovementioned statement by Mason and Deane JJ in Legione v Hateley and said that their Honours “were not saying that there must be unconscionable conduct of an exceptional kind” but rather that “the circumstances must be such as to make it plain that it is necessary to intervene to avoid injustice” or to relieve against “unconscientious conduct” (at 526).

91. [93]

    In Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315, Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ said, at 329, that the “term ‘exceptional’ is apt to be misunderstood” (at 329). Their Honours made clear that it is not necessary to establish “exceptional” circumstances before equity will intervene (at 335 [59]). Their Honours referred to the “the special heads of fraud, accident, mistake or surprise”, identified by Lord Wilberforce in Shiloh Spinners v Harding [1973] AC 691 at 723, making it “inequitable” for a vendor to rely upon its right of termination, and observed that the decided cases in this regard did not “disclose exhaustively” the circumstances which merit equitable intervention (at 335 [58]). Their Honours said that “where accident and mistake are not involved it will be necessary to point to the conduct of the vendor as having in some significant respect caused or contributed to the breach of the essential time stipulation” to show that it is “against conscience” for the vendor to rely upon the termination of the contract (at 335 [58]). This has been described as a “newly distinct head” of equitable relief which precludes “unconscientious reliance on a vendor’s strict legal right to terminate a contract for sale for a purchaser’s breach of a time-essential stipulation”: JD Heydon, MJ Leeming and PG Turner (eds), Meagher Gummow and Lehane’s Equity Doctrines and Remedies, Fifth Edition, (LexisNexis, 2015) at [18-340].

92. [94]

    The relief under the new distinct head is more appropriately understood as relief against termination of contract, in which a purchaser is granted the remedy of an extension of time within which to complete the contract: JD Heydon, MJ Leeming and PG Turner (eds), Meagher Gummow and Lehane’s Equity Doctrine and Remedies, Fifth Edition, (LexisNexis, 2015) at [18-345].

93. [95]

    A factor to be considered in the exercise of the discretion to intervene is the defendant’s entitlement to know with reasonable certainty whether it may resell the land or not: Tanwar at 333 [54] citing Union Eagle Ltd v Golden Achievement Ltd [1997] AC 514 at 520.

94. [96]

    On one view of the circumstances of this case there was a form of mistake. The plaintiff made the mistake of including the incorrect form in section (J) of the Transfer. The defendant’s director intended to execute the Transfer properly on the company’s behalf but as Mr Barrak said in evidence, he failed to turn his mind to the requirements of the Corporations Act. In other words, he mistakenly signed the Transfer as an individual rather than executing it correctly as the sole director and secretary of the defendant. The parties have addressed their submissions on the basis of whether there was any conduct by the defendant contributing to the plaintiff being in breach of the essential time stipulation and I will deal with the matter on that basis.

95. [97]

    The plaintiff’s breach was certainly not wilful. Its failure to be in a position to settle on 30 January 2015 was due to causes apparently beyond its control involving unforseen requirements of the incoming mortgagee. The plaintiff was in a position to proffer the purchase monies at settlement both on 16 February 2015 and on 17 February 2015 within the time period specified in the Notice to Complete.

96. [98]

    The defendant submitted that it was entitled to deliver to the plaintiff “the very same” Transfer that was submitted to it in accordance with clause 4.1 of the Contract. It was submitted that the defendant was under no obligation to check the Transfer or to amend it. It was further submitted that if there was anything wrong with the Transfer as drafted by the plaintiff, clause 20.12 of the Contract provided a remedy post-settlement. That clause required each party to “do whatever is necessary after completion” to carry out their obligations under the Contract. The defendant contended that the plaintiff should have accepted the Transfer at settlement and then sought the defendant’s co-operation to remedy the problem with the execution of the Transfer at a suitable time after settlement. It was submitted that the defendant would have been bound to co-operate pursuant to clause 20.12 of the Contract. Even if this were a viable alternative (in respect of which I have doubts) one of the problems the plaintiff faced was that the incoming mortgagee was not willing to proceed unless the Transfer was properly executed.

97. [99]

    The defendant also submitted that where the plaintiff did not enquire about the proposed manner of execution, “the correct thing to do was to simply adopt the execution clause in accordance with s 127 Corporations Act 2001”. I understand this submission to refer to s 127(1)(c) of the Corporations Act. There was nothing preventing the defendant from writing Mr Barrak’s name under the signature and the words “Sole Director/Secretary”. Alternatively the defendant could have included the words “signed pursuant to s 127(1)(c) of the Corporations Act” after identifying Mr Barrak as the signatory.

98. [100]

    The defendant submitted that Mr Barrak was not obliged to be present or immediately contactable at the time of settlement, nor could the plaintiff reasonably expect him to be. I agree with the submission that a director of the defendant was not obliged to be at the settlement: s 59 of the Conveyancing Act 1919. However, this case is a little more complex by reason of the fact that the director of the defendant was also its solicitor on the conveyance and the director’s sister was both the agent at the settlement as an employee of Barrak Lawyers and the tenant in the subject property. It is apparent that Ms Barrak had no real authority beyond delivering documents and accepting them and was clearly not in a position to make contact with the solicitor for the defendant (as opposed to the director of the defendant). Although Mr Barrak claimed that he had his phone with him and it was turned on, I am satisfied that it was not possible for either Ms Barrak or the plaintiff’s solicitors to make contact with him. It is unsatisfactory that a firm of solicitors is unable to be contacted at a time when a significant settlement is occurring preventing both its employee (Ms Barrak) and the purchaser’s solicitors from making contact with the principal and apparently the only solicitor of the firm.

99. [101]

    Mr Barrak, as solicitor for the defendant, did review the Transfer and noted that the defendant’s name was misspelt. If the defendant’s submission that it was entitled to deliver to the plaintiff “the very same” Transfer delivered to it were to be accepted, then there was no obligation on Mr Barrak to alert the plaintiff’s solicitors to this problem. However he did so. As I have said earlier Mr Barrak did not suggest that there was any problem with section (J) of the Transfer. I am satisfied that the parties were working diligently towards a settlement on 30 January 2015 until the incoming mortgagee’s requirements prevented that occurring. I am also satisfied that both parties failed to recognise that section (J) of the Transfer did not refer to the defendant as a corporation or to the method of execution either with or without a common seal. Once Mr Barrak had notified the plaintiff’s solicitors of the problem with the spelling of the defendant’s name, it appears that each party was lulled into the belief that the Transfer was otherwise in a proper form.

100. [102]

     The contractual obligation for the preparation and service of the Transfer remained with the plaintiff throughout. Although the plaintiff was ultimately in breach of the essential time stipulation I am satisfied that the defendant’s failure to turn its mind to the proper execution of the Transfer and its failure to execute it properly contributed significantly to the plaintiff being in breach of the essential time stipulation.

101. [103]

     Although the defendant’s conduct in terminating the Contract may not strictly be described as “unconscionable”, I am satisfied that the reliance on its legal rights to terminate the Contract in the circumstances of its significant contribution to the cause of the plaintiff being in breach of the time stipulation would be unconscientious. I am satisfied that it is appropriate to grant the plaintiff relief, on terms.

102. [104]

     Although the parties addressed themselves to the remedy of relief against forfeiture, the appropriate relief in the circumstances is against the termination of the Contract and to grant the plaintiff an extension of time within which to complete the Contract.

103. [105]

     The defendant submitted that if relief were to be granted it should be on terms that the plaintiff pays, on an indemnity basis, the defendant’s costs of issue of the Notice to Complete, and the defendant’s costs incurred in relation to the termination, including all costs of the transaction and the litigation from 18 February 2015 until the date of final orders.

104. [106]

     The plaintiff submitted that if it were to be successful the defendant should pay its costs of the proceedings.

105. [107]

     I am of the view that as part of the terms of relief to be granted, the plaintiff should pay the defendant’s costs on an indemnity basis of the issue of the Notice to Complete, and the defendant’s costs incurred in relation to the Notice of Termination.

106. [108]

     If the parties are unable to reach agreement on a costs order, it is appropriate to provide them with an opportunity to be heard after having an opportunity to consider these reasons.

107. [109]

     The plaintiff is granted relief against the termination of the Contract and an order will be made granting the plaintiff an extension of time within which to complete the Contract on terms that the plaintiff pay the defendant’s costs on an indemnity basis of the issue of the Notice to Complete, and the defendant’s costs incurred in relation to the Notice of Termination.

108. [110]

     The parties are to bring in Short Minutes of Order reflecting this relief to be filed with the Court on 13 April 2015 at 10.00 am when the matter is listed for final orders. If the parties are unable to agree on a costs order I will hear argument at that time or on a date to be fixed.