Greenway Investors Pty Ltd v Bautovich

1. [1]

   These proceedings are concerned with a property situated at 50-80 Adams Road, Luddenham NSW 2745, being the land described as Lot 1 in DP 1237488 (the Property). The registered proprietors of the Property are the First and Second Defendants, Messrs Slavko Bautovich and Martin Bautovich (the Bautovichs). Greenway Investors Pty Ltd ACN 624 105 111 (Greenway) is a company registered on 30 January 2018 and whose current directors comprise of Messrs Satheesh Mekkar Abraham and Sojan Chacko Pandarasseril.

2. [2]

   In these proceedings, Greenway contends that it purchased the Property from the Bautovichs pursuant to a contract dated 9 March 2018 (Contract), as amended by subsequent deeds. However, the purchase price under the Contract was never paid in full. On 6 October 2019, the Bautovichs purported to issue a Notice to Complete under the Contract stating that unless the balance of the purchase price was paid by 3.00pm on 9 October 2019, they would be entitled to terminate the Contract. This not having been done, the Bautovichs proceeded to issue a Notice of Termination on 10 October 2019.

3. [3]

   Greenway contends that the Notice to Complete (and consequently the Notice of Termination) are invalid on the basis that on 3 August 2018, Greenway, the Bautovichs and the Third Defendant, Mr Tihomir Stoikovich (as authorised representative of the Bautovichs) entered into a document called ‘Title Deed and Acknowledgment Deed Poll’ (Deed Poll) in favour of Greenway by which the Bautovichs relevantly acknowledged that on 3 August 2018 the Contract ‘completed’ and Greenway became the ‘sole proprietor’ of the Property.

4. [4]

   Greenway now seeks by way of its amended summons various declarations and orders to give effect to the Contract as follows:

   1. (1)

      A declaration that the Notice to Complete is invalid and of no force or effect (order 1);

   2. (2)

      A declaration that the Notice of Termination is invalid and of no force or effect (order 2);

   3. (3)

      A declaration that the Deed Poll was and remains valid, binding and enforceable (order 3);

   4. (4)

      A declaration that on 3 August 2018, the Contract completed and Greenway became the sole proprietor of the Property (order 4);

   5. (5)

      An order that the Bautovichs forthwith return to Mr Stoikovich the ‘Settlement Documents’, as defined in the Deed Poll (order 5);

   6. (6)

      Further or in the alternative to (5), an order that Mr Stoikovich specifically perform his obligation under clause 4(b) of the Deed Poll, including but not limited to taking all necessary steps to have the Transfer lodged through PEXA (order 5A); and

   7. (7)

      Further or in the alternative to (6) an order that the Bautovichs take all necessary steps to have the Transfer of Land lodged through PEXA (order 5B).

5. [5]

   The Bautovichs oppose all of the relief sought by Greenway on the following grounds:

   1. (1)

      Notwithstanding the existence of the Deed Poll which purports to record the ‘fact’ that the Contract has completed, the Court is entitled to ‘look behind’ that document to ascertain the true state of affairs: Kimberley Development Pty Ltd v Bale [2023] NSWCA 25 at [53]-[54]; Fischer v Nemeske Pty Ltd (2016) 257 CLR 615; [2016] HCA 11 at [85]-[86] and [193]. Thus, because the purchase price has not actually been paid, completion did not occur and therefore no estoppel arises by reason of the Deed Poll.

   2. (2)

      The Court should not exercise its discretion to grant specific performance of the Contract, taking account of the following facts:

6. [6]

   Greenway’s evidence comprised 4 affidavits of Mr Pandarasseril and the Defendants’ evidence comprised 2 affidavits of Michael Osborne, the solicitor for the Bautovichs. Mr Pandarasseril was cross-examined briefly. Mr Osborne was not cross examined. The parties proceeded on the basis that the issues in dispute turned on the documentary evidence.

Factual Background

1. [7]

   The Property is 12.13 hectares and located approximately 1.5km from the Western Sydney International Airport presently under construction. The Bautovichs have been the registered proprietors of, and continuously occupied, the Property at all relevant times.

2. [8]

   The factual background of this matter is best understood by setting out the sequence of events by which the relevant documents were entered into in chronological order.

3. [9]

   The Property was first listed for sale by the Bautovichs on around 22 September 2015. On 20 January 2017, the Bautovichs exchanged a contract for sale of the Property with 5Star Sion Ltd (5Star Contract), a now-defunct company of which Mr Pandarasseril was a director prior to its deregistration on 19 September 2024.

4. [10]

   Under the terms of the 5Star Contract:

   1. (1)

      The purchase price was $10,500,000;

   2. (2)

      A deposit of $300,000 was payable on exchange with a further $750,000 due on 15 December 2017;

   3. (3)

      5Star was to pay part of the balance of the purachse price of $4,250,000 on or before 15 December 2017;

   4. (4)

      Completion was 18 months from the contract date, with time being of the essence; and

   5. (5)

      The performance of 5Star were personally guaranteed by its directors, who were Mr Pandarasseril along with Messrs Stephen Simon and Thomas Abraham.

5. [11]

   However, it was clear that 5Star had serious financial difficulties in going through with the 5Star Contract. It sought a variation of time to pay various amounts, which were rejected by Mr Stoikovich on behalf of the Bautovichs. While it did manage to secure an agreement with the Bautovichs in varying some of the terms described above on 4 December 2017, it entered voluntary administration only three days later having failed to pay any of the purchase price. The administrators failed to raise enough funds to complete the 5Star Contract and, as a result, on 16 January 2018 the Bautovichs issued a notice of termination of the 5Star Contract.

6. [12]

   Between January and February 2018, Mr Stoikovich entered into negotiations for the sale of the Property with another party, Luddenham Property Pty Ltd, whose directors appear to have been investors in 5Star. On 17 January 2018 Mr Stoikovich issued a contract for sale of the Property to Luddenham. This prospective sale also did not eventuate, but Luddenham maintained that it had a binding agreement with the Bautovichs to purchase the Property; which affected the circumstances surrounding the Contract (as will be seen further below). Ultimately Luddenham was also deregistered on 21 April 2020.

7. [13]

   On 9 March 2018, Greenway (as Purchaser) and the Bautovichs (as Vendors) entered into the Contract which adopts the Law Society/Real Estate Institute standard form (2017 edition) with additional ‘special conditions’ which are stated to take precedence over the ‘printed conditions’ (ie. the clauses in the standard form).

8. [14]

   The terms of the Contract include the following:

   1. (1)

      The purchase price was $11.2 million with a 10% deposit of $1,120,000 which was required to be paid by 6 April 2018 in respect of which time was of the essence (Special Condition 5).

   2. (2)

      Cl 15 of the standard form provided that: ‘The parties must complete by the date for completion and, if they do not, a party can serve a notice to complete if that party is otherwise entitled to do so’.

   3. (3)

      Cl 16 of the standard form provided relevantly:

   4. (4)

      The first page of the Contract stated that the ‘date for completion’ was 30 April 2018. Special Condition 9 provided that: ‘The completion date is 30 April 2018, time being of the essence’. Special Condition 7, which is headed ‘Notice to Complete’, provided:

   5. (5)

      The parties agreed that the purchaser would grant a licence in respect of the Property to the Vendors on completion in the form annexed to the Contract (Special Condition 17).

   6. (6)

      The Vendors confirmed that they had not entered into an enforceable agreement to sell the Property to Luddenham, and that Greenway may take action on behalf of the Vendor against any caveat or priority notice lodged by either Luddenham or 5Star (Special Condition 19).

   7. (7)

      Mr Matthew Joseph, a director of Greenway at the time, gave a personal guarantee as to the latter’s obligations under the Contract.

9. [15]

   Also on 9 March 2018, the parties entered into a licence agreement in the form annexed to the Contract under which Greenway granted a non-exclusive licence to the Bautovichs to occupy the Property from the completion date until 31 December 2018 for a fee of $1.

10. [16]

    The deposit of $1,120,000 was paid on 6 April 2018.

11. [17]

    On 13 March 2018, Luddenham lodged a caveat against the Property which described its claimed interest as ‘Agreement to purchase property between caveator and registered proprietors supported by part performance in payments made on 12/1/2018, 19/1/2018 and 9/2/2018.’ Greenway opted to defend the action taken by Luddenham in accordance with its rights under the Contract. A lapsing notice was issued to Luddenham on about 19 March 2018 and Luddenham’s caveat lapsed on 16 April 2018.

12. [18]

    On 6 April 2018, prior to the lapsing of Luddenham’s caveat on 16 April 2018, the Bautovichs, Greenway and Mr Joseph executed a deed titled ‘Deed of Variation of Contract’ (First Variation Deed). Clause 4 varied the Contract by replacing ’30 April 2018’ on the front page of the Contract beside ‘date for completion’ and in Special Condition 9 with the words ‘the date which is 2 calendar months after the earlier of the date that the [Luddenham Caveat] lapses or is withdrawn.’ No other variations to the Contract were made. Since the Luddenham Caveat lapsed on 16 April 2018, the new date for completion was therefore 16 June 2018.

13. [19]

    On 2 August 2018, some four months after the First Variation Deed was entered into, the Bautovichs, Greenway and Mr Joseph entered into another deed titled ‘Second Deed of Variation of Contract’ (Second Variation Deed). It is apparent from the recitals to this deed that while Luddenham’s Caveat had lapsed this was in the context of a proposed settlement of the dispute with Luddenham which was intended to be finalised by the signing of a formal settlement deed and this had not yet occurred. As a result, the parties had agreed to vary the Contract again, including delaying the completion date.

14. [20]

    Clause 3 of the Second Variation Deed varied the Contract in the following way:

    1. (1)

       Cl 3(a)-(c) replaced the words which had been inserted into the Contract by cl 4 of the First Variation Deed specifying the new date for completion, with a cross reference to ‘Special Condition 23’ and then inserting a new Special Condition 23 as follows:

    2. (2)

       Cl 3(d) replaced the existing cl 16.7 of the standard form, which previously required payment of the balance of the purchase price on completion, with a new clause 16.7 as follows:

    3. (3)

       Cl 3(e) deleted cl 16.8 of the standard form which would require the vendor to pay for extra settlement cheques if more than 5 are required.

    4. (4)

       Cl 3(f) inserted a new Special Condition 24 as follows:

    5. (5)

       In fact there are no ‘following clauses’ in the Contract itself, but the parties proceeded at the hearing on the basis that these words should be read as a reference to the clauses in the Second Variation Deed which followed cl 3 and I accept that this is the appropriate construction of this clause.

    6. (6)

       Cl 3(g) replaced the form of licence agreement annexed to the Contract with a new version of that agreement.

15. [21]

    The Second Variation Deed then went on to set out a number of additional provisions regarding the transaction, including relevantly:

    1. (1)

       By cl 4(a), Greenway agreed not to mortgage or encumber the Property prior to the payment of the ‘Deferred Amount’ in full. The term ‘Deferred Amount’ is not defined in the Second Variation Deed but appears to be a reference to the two Instalment Payments provided for in the new cl 17(b) of the Contract.

    2. (2)

       By cl 5(a), Mr Joseph, as guarantor, guaranteed payment of the Deferred Amount in full.

    3. (3)

       Cl 5(b) provided that:

    4. (4)

       Cl 8 provided that ‘the variation of the Contract set out in this Deed supersedes the variations set out in the First Variation Deed’.

    5. (5)

       Cl 9(a) provided that ‘other than the variations to the Contract given effect by this Deed, the parties ratify and affirm the Contract in all other respects’.

    6. (6)

       Cl 11.1 provided that ‘this Deed, the First Variation Deed and the Contract records the entire agreement between the parties in relation to its subject matter’.

16. [22]

    On the same day the parties also entered into a new ‘Licence Agreement’, in the form annexed to the Second Variation Deed (Licence Agreement) and a mortgage from Greenway in favour of the Bautovichs (Mortgage).

17. [23]

    By the Licence Agreement, Greenway agreed to grant the Bautovichs a licence to occupy the Property on and from the new completion date, for a licence fee of $1, on an exclusive basis until payment of the First Instalment, and on a non-exclusive basis until the later of the date that the ‘Secured Money’ (a term not defined) has been paid in full by Greenway to the Bautovichs, and the date 8 months after the completion date.

18. [24]

    The Mortgage was expressed to be a mortgage by Greenway to the Bautovichs over the estate in fee simple in the Property ‘as security for the debt or liability described in the terms and conditions set out or referred to in this mortgage’, which includes Annexure A. Annexure A provided, relevantly:

19. [25]

    The expression ‘mortgage becomes enforceable’ was defined to mean the later of any date specified by any relevant law for enforcement of the mortgagee’s rights and one month after the date of any notice in writing by the mortgagee to the mortgagor that ‘that it has breached an obligation or duty under this mortgage or the [Contract] and such breach has not been remedied … or the Mortgagor goes into liquidation or external administration of specified kinds.

20. [26]

    Although the Mortgage was executed, it was not registered, reflecting the fact that under the Deed Poll referred to below, it was at all relevant times subject to the escrow in cl 4 of that deed.

21. [27]

    On the next day, 3 August 2018, the Defendants (being the Bautovichs and Mr Stoikovich) entered into the Deed Poll in favour of Greenway. The background to the execution of this Deed is contained in the recitals which provide:

22. [28]

    While the expression ‘Irrevocable Direction’ is not defined on the Deed Poll, Greenway submits that it should be read as a reference to, cl 4 (see below). The expression ‘Settlement Documents’ is defined in cl 1.1 (see below).

23. [29]

    Clauses 2, 3, 4 and 6 of that Deed Poll are the most important provisions of the Deed Poll and are central to Greenway’s case. These clauses provided:

24. [30]

    Relevant to the above clauses are various defined terms which are provided in clause 1.1. Those definitions relevantly include:

25. [31]

    The evidence does not explain the background to the rather unusual provisions embodied in the Deed Poll. There is no evidence from Mr N Donato of Bartier Perry, Greenway’s then solicitors, who drafted the Deed Poll or Mr Stoikovich, the Bautovichs’ then solicitor, who conducted the negotiations on their behalf. There is an email from Mr Donato to Mr Stoikovich on 2 August 2018 at 8:16pm which attached ‘by way of exchange’ executed copies of the Second Variation Deed, the Mortgage, the Licence Agreement and a form of caveat to be lodged by Greenway and then continued:

26. [32]

    While cl 2 of the Deed Poll states that the Vendors acknowledge that the Contract ‘completed’ on 3 August 2018 there is no evidence that anything occurred on 3 August other than the execution of the Licence Agreement, the delivery of the Settlement Documents by Greenway to Mr Stoikovich (recital F) and the execution of the Deed Poll itself.

27. [33]

    On 8 August 2018 Greenway lodged a caveat (No AN558335) (Greenway caveat) on the title for the Property which had been executed on 2 August claiming an interest in the following terms:

28. [34]

    On 9 August 2018, Greenway Investor Holdings Ltd was registered and shortly afterwards it became the parent company of Greenway and then on 16 August 2018 it issued a Prospectus seeking to raise a minimum amount of $8 million by the issue of new shares in the company, for the purpose of, inter alia, being lent to Greenway to ‘repay vendor finance provided to Greenway by the Vendors under the contract for sale and associated purposes’ (page 4). No shares were issued under this prospectus as ASIC issued an order to the company under s 739(1A) of the Corporations Act 2001 (Cth) on 21 December 2018 prohibiting it from doing so.

29. [35]

    On about 19 September 2018, Greenway and the Bautovichs, along with three other Obligors (being Messrs Pandarasseril, Simon and Abraham) entered into a document titled ‘Release and Novation of rights and obligations under Contract’ (Deed of Release).

30. [36]

    The purpose of the Deed of Release was to release Greenway of certain obligations under the Contract (as amended by the various deed referred to above) to defend any claim by Luddenham under Special Condition 19 of the Contract and impose those obligations on the Obligors. However, what is relevant for present purposes is that it contained the following:

31. [37]

    Relevantly to understanding the above, the following definitions were given by cl 1.1 of the Deed of Release:

32. [38]

    In addition, the Deed of Release also contains an entire agreement clause in the following terms (cl 7.1):

33. [39]

    Notwithstanding what was agreed in the Second Variation Deed, Greenway did not pay the first instalment payment by 30 September 2018. Indeed the only amounts which have been paid by Greenway following the Second Variation Deed are two payments in respect of interest: $58,000 in September 2018 and $120,000 in late October 2018. The Bautovichs initially took steps to enforce their rights to payment of the balance of the purchase price by serving a notice of demand on Greenway on 25 October 2018 and a subsequent demand on one of the Guarantors, Mr Pandarasseril on 29 April 2019. There followed some discussions between the parties leading to an email dated 6 August 2019 from Bartier Perry (solicitors for Greenway) to Osborne Lawyers (solicitors for the Bautovichs) setting out Greenway’s proposal for a further extension of time to pay the instalment payments due under the Second Variation Deed. This proposal was not accepted.

34. [40]

    Instead, on 6 September 2019, the Bautovichs issued the Notice to Complete which stated:

35. [41]

    On 9 October 2019, Greenway responded by email: contending that the Notice to Complete was invalid because under the Deed Poll and the Deed of Release, the Contract had already completed on 3 August 2018.

36. [42]

    On 10 October 2019, following the expiry of the deadline stipulated in the Notice to Complete, the Bautovichs issued the Notice of Termination which stated:

37. [43]

    Following the service of the Notice to Complete and the Notice of Termination, Osbornes Lawyers (the solicitors for the Bautovichs), served a lapsing notice on Bartier Perry (solicitors for Greenway) in respect of the Greenway caveat, which subsequently lapsed in November 2019. Following this, on 14 November 2019, Osbornes Lawyers sent a letter to Bartier Perry stating that the Bautovichs considered themselves at liberty to deal with the Property as they wish.

38. [44]

    For a period of two years after November 2019, there was no further engagement between the Bautovichs and Greenway with respect to the Property. During this time, the Bautovichs appointed a sales agent to sell the Property on their behalf but without success.

39. [45]

    It was not until February 2022 that Greenway reasserted its interest in the Property. During the period between February 2022 and October 2024, Greenway took several steps to sell the Property (including by maintaining a website calling for public investment to develop it) in a way that was inconsistent with the Bautovichs’ own efforts to sell the Property as mentioned above.

40. [46]

    On 30 October 2024 the Bautovichs granted a registered mortgage over the Property to the ANZ Bank to secure a loan made to them. This is a different mortgage to the one referred to in the definition of ‘Discharge’ in cl 1.1 of the Deed Poll which has been discharged. After the hearing, the ANZ Bank was given notice of the proceedings and informed the Court that it does not wish to be heard on the basis of the indication given by both parties that its mortgage will be discharged regardless of the outcome of the proceedings.

41. [47]

    Greenway did not lodge the Contract with Revenue NSW for assessment of stamp duty until August 2025 following a direction to do so by the Court on 8 August 2025. A Duties Notice of Assessment was issued on 13 August 2025 in the amount of $1,035,000.55 in respect of the duty and interest payable. The duty assessed on the Contract was $601,490 together with $10 for the duplicate of the Contract and $10 for the Transfer. The assessment was paid in full on 2 September 2025.

42. [48]

    It is helpful to recap the key events in this chronology which are relevant to the present dispute.

    1. (1)

       As a result of the First Variation Deed entered into on 6 April 2018, the completion date under the Contract was extended to 16 June 2018.

    2. (2)

       By the Second Variation Deed entered into on 2 August 2018 at a time when completion was almost seven weeks overdue, the Contract was amended to:

    3. (3)

       The Second Variation Deed also required Greenway to grant a mortgage to the Bautovichs on completion to secure the payment of the balance of the purchase price.

    4. (4)

       On the following day, the Deed Poll was executed by the Bautovichs and Mr Stoikovich in favour of Greenway which:

    5. (5)

       On 19 September 2018 the Deed of Release was entered into which also contained a recital stating that the Contract had completed on 3 August 2018.

    6. (6)

       Greenway having not paid the balance of the purchase price under clause 16.7 of the Contract, the Bautovichs issued the Notice to Complete on 6 September 2019 identifying those breaches and requiring the payment of those amounts plus interest by 9 October 2019 and making time of the essence, and following non-payment of those amounts by that date, issued the Notice of Termination on 10 October 2019.

    7. (7)

       The stamp duty payable on the Contract and Transfer were not paid until 2 September 2025.

Issues for consideration

1. [49]

   Although Greenway seeks the seven substantive orders set out at [4] above, many of them overlap and can be boiled down to two issues: estoppel and specific performance.

2. [50]

   This is because Greenway’s success in respect of proposed orders 1 – 4 hinges on whether the Defendants can be estopped from denying that the Contract completed on 3 August 2018 and that it is the true proprietor of the Property vis-à-vis the Defendants, notwithstanding the Bautovichs’ status as registered proprietor and therefore enjoying the protections of ss 42 and 43 of the Real Property Act. Mr Simpkins submitted that if this estoppel claim is made out, the Court could, and would, grant declaratory relief in the manner sought in proposed orders 1, 2, 3 and 4.

3. [51]

   In contrast, proposed orders 5, 5A and 5B are orders in the nature of specific performance for the completion of the Contract, including the execution of the transfer of the title to the Property to Greenway and the delivery of the Settlement Documents as provided for therein. The making of these orders is necessarily dependent upon whether the Contract is one which a Court would declare specifically performance over and whether, in these circumstances, the Court would be persuaded to do so.

4. [52]

   The above approach, which involved a bifurcation of the issues as comprising of those going to estoppel by deed and specific performance, was how the matter was addressed in written submissions before trial by both parties. However, throughout the course of the hearing there was a departure from this approach by both parties, particularly about the extent to which the matter was a true ‘estoppel by deed’ case or whether it was merely a dispute about what the precise obligations and entitlements of the parties were under their agreement.

5. [53]

   In view of those changes, I directed the parties to provide an agreed list of issues for determination. The final list which was agreed upon by the parties provided as follows:

   1. (1)

      Should the reference to “First Variation Deed” in cl 6.1 of the Deed Poll dated 3 August 2018 be rectified by construction to refer to the Second Variation Deed dated 2 August 2018 (the Second Variation Deed as identified in the recital D).

   2. (2)

      Whether the terms of the Contract dated on or around 9 March 2018, which included the below obligations under cl 16.7 (as amended by cl 3(d) of the Second Variation Deed) (being the Amended Payment Schedule), continued in operation after the execution of the deed poll:

   3. (3)

      Relevant to question 2, should it be concluded, in the context of:

   4. (4)

      Whether the Defendants’ Notice to Complete dated 6 September 2019 was valid with the effect that time to pay the deferred purchase price became of the essence.

   5. (5)

      Whether the Defendants’ Notice of Termination dated 10 October 2019 is valid.

   6. (6)

      Whether Greenway is entitled to call for the transfer of the Property under the terms of the Contract and/or Deed Poll.

   7. (7)

      Whether Greenway is entitled to an order for specific performance giving effect to the transfer of the Property to it.

6. [54]

   I will address these issues seriatim, with the exception of issues 2 and 3 which by their nature ought to be dealt with together.

Issue 1: Should the reference to “First Variation Deed” in cl 6.1 of the Deed Poll dated 3 August 2018 be rectified by construction to refer to the Second Variation Deed dated 2 August 2018 (the Second Variation Deed as identified in the recital D).

1. [55]

   As noted earlier, cl 6.1 of the Deed Poll provides:

2. [56]

   This clause should also be read with the definition of ‘Contract’ in cl 1.1 of the Deed Poll which was: ‘the contract for the sale and purchase of land between the parties dated 9 March 2018 (as varied by the First Variation Deed and this Deed Poll)’.

3. [57]

   At the hearing a question was raised as to the proper construction of cl 6.1 given that on its face it excluded the Second Variation Deed from the ‘entire agreement’ of the parties, as at the time of execution of the Deed Poll, notwithstanding that the Second Variation Deed was executed on the day before and made significant amendments to the Contract on which aspects of the Deed Poll are predicated. As senior counsel for the Defendants pointed out at trial, this would give rise to a number of problems. First, at the time the Deed Poll was entered into, Greenway would already be in default for not having completed the Contract by 16 June 2018. Secondly, it would also be plainly contradictory with other terms of the Deed Poll, which defined ‘Mortgage’ as ‘mortgage over the Land granted by the Purchaser to the Vendors’, in circumstances where the only mortgage which fitted that description was that provided for in the Second Variation Deed. I note that the submissions of both parties at the hearing proceeded on the basis that the Second Variation Deed formed part of the bargain between the parties despite the literal words of cl 6.1 of the Deed Poll.

4. [58]

   The parties have agreed that the issue to be resolved here is whether ‘the reference to the First Variation Deed in c 6.1… [could] be rectified by construction to refer to the Second Variation Deed’.

5. [59]

   ‘Rectification by construction’ is the label which has sometimes been used to refer to a process where words may be ‘supplied, omitted, or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency’: Fitzgerald v Masters (1956) 95 CLR 420 at 426-27; [1956] HCA 53. However, properly understood, it is merely a particular instance of the overall process of construing words in an instrument, and does not involve rectification of the instrument as the nature of the task is one of construction only: James Adam Pty Ltd v Fobeza Pty Ltd (2020) 103 NSWLR 850; [2020] NSWCA 311 at [1] per Bell P (Macfarlan JA agreeing); Maintech Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 at [116] per Leeming JA (Ward and Emmett JJA agreeing); Zhong v Guan (2024) 116 NSWLR 258; [2024] NSWCA 300 at [23]-[26] per Kirk JA (Payne JA and Price AJA agreeing).

6. [60]

   In order for a court to correct the contractual language by a process of construction of the contract as a whole it must be clear (a) that the literal meaning of the words used leads to absurd results, inconsistency or manifests some obvious mistake as established by permissible evidence, and (b) what words need to be supplied, omitted or corrected in order to give effect to the objective intention of the parties: Maintech Services at [117]; Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11 at [15] per Leeming JA (Payne and White JJA agreeing) at [6]-[11]; Zhong at [38].

7. [61]

   Because the court would ‘not readily accept that people have made mistakes in formal documents’, it would need to be satisfied of both of these elements to ‘a high level of conviction’: Seymour Whyte at [10], citing Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101; [2009] UKHL 38 at [23].

8. [62]

   With respect to element (a), mere ambiguity is not sufficient: Mainteck Services at [120]. However, ‘absurdity’ in its strict sense is not essential, it being sufficient that there is the presence of a ‘palpable’, ‘obvious’ or ‘clear’ mistake: HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 295 at [53] per Meagher JA and Ball J, cited with apparent approval by Leeming JA in Fobeza at [55] (Bell P and Macfarlan JA agreeing). Indeed, this approach appears to have now been firmly established: Zhong at [27].

9. [63]

   With respect to element (b), even if it is clear that something has gone awry with the drafting of the contract, the court is not in a position to speculate as to the true nature of the bargain between the parties if it is unclear as to how the drafting error can be resolved: Fobeza at [63], applying Energy World Corporation Ltd v Maurice Hayes & Associates Pty Ltd (2007) 239 ALR 457; [2007] FCAFC 34 at [11]. Further, although the test has traditionally been envisioned as comprising of two separate elements as described above, they may in some cases overlap to a significant degree, bearing in mind that the only true question is one of construction: Zhong at [37]-[38].

10. [64]

    In determining these questions in relation to cl 6.1 of the Deed Poll the Court applies the well-established principles for the construction of commercial contracts which were summarised in J&P Marlow (No 2) Pty Ltd v Hayes (2023) 112 NSWLR 29; [2023] NSWCA 117 as follows at [89]-[90]:

11. [65]

    I will address first the question whether the literal meaning of cl 6.1 (and the definition of ‘Contract’ cl 1.1) of the Deed Poll leads to absurd results, inconsistency or manifests some obvious mistake (element (a)).

12. [66]

    There are a number of features of the Deed Poll, and the circumstances surrounding its execution, which indicate that the omission of the Second Variation Deed from cl 6.1 (and from the definition of ‘Contract’ cl 1.1) was an obvious mistake.

13. [67]

    First, recital D of the Deed Poll refers the Second Variation Deed and recital E then states that ‘on 3 August 2018, the parties completed the sale and transfer of the Land from the Vendors to the Purchaser in accordance with the terms of the Contract’. The words in italics are premised on the Second Deed of Variation, signed on the previous day, being effective to amend the date for completion to a date on or before 6 August 2018; otherwise, completion on that date would not have been in accordance with the Contract (but rather almost 7 weeks late). Further, there is nothing in the Deed Poll (beyond cl 6.1 and the definition of ‘Contract’ in cl 1.1) to suggest that the other significant amendments to the Contract made by the Second Variation Deed were not still part of the Contract at the time the Deed Poll was signed on the following day.

14. [68]

    Recital D to the Deed Poll is clearly background objectively known to the parties at the time the Deed Poll was entered into. Hence, it is permissible to have regard to it in determining the purpose of the Deed Poll. Further, the fact that cl 6.1 is an entire agreement clause does not preclude reference to surrounding circumstances as part of the context in the process of construction: Maintech Services at [130].

15. [69]

    Secondly, given the very significant changes to the Contract made by the Second Variation Deed referred to in the previous point, it would be absurd if these variations to the Contract were excluded from the bargain between the parties merely because the entire agreement clause in the Deed Poll does not mention it.

16. [70]

    Thirdly, the Second Variation Deed provides that the variations to the Contract made by it supersede the variations set out in the First Variation Deed, yet the Deed Poll includes the first of these deeds but not the second. This throws up an inconsistency between clause 6.1 of the Deed Poll and cl 8 of the Second Variation Deed which has no apparent explanation other than the mistake in cl 6.1.

17. [71]

    Fourthly, a key purpose of an entire agreement clause is to preclude a party to a written agreement ‘from threshing (sic) through the undergrowth and finding in the course of negotiations some (chance) remark or statement (often long forgotten or difficult to recall or explain) on which to found a claim … to the existence of a collateral warranty’: Inntrepreneur Pub Co (GL) v East Crown Ltd [2000] 2 Lloyd’s Rep 611 at 614 per Lightman J. That this is the purpose of cl 6.1 is indicated by the second sentence of cl 6.1. That purpose is not inconsistent with recognising the Second Variation Deed as part of the bargain between the parties as at the date of the Deed Poll.

18. [72]

    Fifthly, there are some drafting slips in the Deed Poll which indicate that it was prepared with some haste, including the failure to define the terms ‘Second Variation Deed’ and ‘Irrevocable Direction’ which appear in the recitals.

19. [73]

    The same considerations are equally applicable to the failure to include the Second Variation Deed in the definition of ‘Contract’ in cl 1.1.

20. [74]

    Turning now to the nature of the correction to be made (element (b)), it is clear in my view that the following corrections need to be made to the Deed Poll to correct these mistakes:

    1. (1)

       cl 6.1 should be read as if ‘, the Second Variation Deed’ appeared after ‘First Variation Deed’ in both the first and second sentences; and

    2. (2)

       the definition of ‘Contract’ in cl 1.1 should be read as if ‘, the Second Variation Deed’ appeared after ‘First Variation Deed’.

21. [75]

    I regard this approach as similar to the correction of a mistake by construction in the rent review clause at issue in Westpac Banking Corporation v Tanzone Pty Ltd (2023) 113 NSWLR 73; [2000] NSWCA 25.

22. [76]

    Even if the analysis above is incorrect, the same result was effectively achieved by the parties when they entered into the Deed of Release which, although not relied on by the parties on this issue, does assist. Clause 7.1 of the Deed of Release provided:

23. [77]

    The reference to the ‘Title Deed’ in the above cl 7.1 is to the Deed Poll. The plain meaning of this clause is that the Second Variation Deed was part of the Contract, and in doing so it supersedes cl 6.1 in the original Deed Poll. Similarly, the definition of ‘Contract in cl 1.1 of the Deed of Release set out earlier includes the Second Variation Deed. In my view, cl 7.1 of the Deed of Release is capable of overriding cl 6.1 of the Deed Poll. It is well-settled that an agreement between two or more parties can always be modified (or even rescinded) by a subsequent agreement notwithstanding the existence of an entire agreement clause in the former: see eg McCleary v Dien Australia Pty Ltd [2021] WASC 272 at [185]-[189] and authorities there cited. The same is true in the context of deeds, provided that the subsequent document is also a deed which has been executed in the same ‘great care and formality’: ING Funds Management Ltd v ANZ Nominees Ltd [2009] NSWSC 243; (2009) 228 FLR 444 at [72]-[77]. The Deed Poll itself by cl 8.8 provides that it is capable of being ‘amended, supplemented or replaced’, so long as this is done ‘by another Deed signed by the parties’, a condition which the Deed of Release clearly satisfies.

24. [78]

    In the result, I conclude that if I am wrong as to the proper construction of the Deed Poll to correct the identified mistake, it is clear for the reasons given above that following the execution of the Deed of Release, cl 7.1 of that deed had the effect of ‘reincorporating’ the Second Variation Deed into the Contract. Since these proceedings are chiefly about whether the Bautovichs were entitled to serve a notice to complete, which took place well after the entry into the Deed of Release, the position will be the same by virtue of cl 7.1 of the Deed of Release.

25. [79]

    Accordingly, the first issue raised by the parties is answered in the affirmative.

Issues 2 and 3: Whether the change in completion date and Amended Payment Schedule which were provided for by force of clauses 3(c) and 3(d) of Second Variation Deed respectively, continued in operation after the execution of the Deed Poll:

1. [80]

   In light of the conclusion reached on the first issue, the provisions of the Second Variation Deed, including relevantly clauses 3(c) and 3(d) providing for a new completion date and the amended payment schedule, remained operative as part of the overall Contract notwithstanding the execution of the Deed Poll. Thus, from that time (or at the latest 19 September 2018 when the Deed of Release was entered into), Greenway had an obligation to pay the Bautovichs, in accordance with cl 16.7 of the Contract (as amended by cl 3(d) of the Second Variation Deed), the first instalment of $4 million by 30 September 2018, and the balance of the purchase price by no later than one year after the date for completion.

Issue 4: Whether the Defendants’ Notice to Complete dated 6 September 2019 was valid with the effect that time to pay the deferred purchase price became of the essence?

1. [81]

   The crux of Greenway’s case, and the original manner in which it was put, is that by the combined effect of the Contract (as amended by the First Variation Deed and the Second Variation Deed), the Deed Poll, the Deed of Release, the Licence Agreement, and the Mortgage, can be summarised by the following propositions and, if incorrect, the Defendants are estopped from denying that they are correct:

   1. (1)

      On 3 August 2018,

   2. (2)

      Since 3 August 2018, the Bautovichs’ entitlement to possession of the Property is as licensee pursuant to the Licence Agreement;

   3. (3)

      Beyond their interest as licensee pursuant to the Licence Agreement, the Bautovichs have an interest in the property as mortgagee pursuant to the Mortgage.

   4. (4)

      Since 3 August 2018, Mr Stoikovich has held, or has been required to hold, in escrow on behalf of the Bautovichs and Greenway, the Settlement Documents until Mr Stoikovich receives from Greenway the stamped transfer and other relevant documents; and that

   5. (5)

      Mr Stoikovich is required, upon satisfaction of (4) above, to do all things necessary to enable Greenway to become the registered proprietor of the Property.

2. [82]

   At the hearing the parties focused only on Proposition 1(a) and Proposition 1(b), viz, whether on 3 August 2018 the Contract completed and Greenway became the ‘sole proprietor’ of the Property or whether Greenway can set up an estoppel by deed which prevents the Bautovichs from disputing those propositions. That is because it was accepted that the question whether the Contract was validly terminated by the Bautovichs by the Notice of Termination turned on whether the Contract had completed on 3 August 2018 (T15.26-29).

3. [83]

   Other than these arguments based on Proposition 1(a) and Proposition 1(b), Greenway did not press any further challenge in respect of the validity of the Notice to Complete (and, in turn, the Notice of Termination).

4. [84]

   In written submissions, Greenway submitted that it is clear from the documents constituting the Contract, construed as a whole, that Proposition (1)(a) and (1)(b) formed part of the basis upon the parties have chosen to transact in relation to the sale of the Property, citing cl 2 of the Deed Poll and recital E in the section titled ‘Background’ to the Deed of Release. Greenway argues that even if those propositions are not factually accurate, because ‘the parties have chosen deliberately to enter into a transaction on a counterfactual basis’ in this manner, there will consequently be ‘no occasion for equity to intervene’ and deny the estoppel that would arise: Data Transfer Services Pty Ltd v White (2023) 111 NSWLR 25; [2023] NSWCA 16 at [39]. In addition, Greenway explicitly relied on cl 2 of the Deed Poll, which is consistent with Special Condition 23 inserted in the Contract by the Second Variation Deed fixing the date of completion of the Contract as being the date ‘on or before the 4th day after the date of the [Second Variation Deed, being 6 August 2018]’, as a further matter in support of the notion that such was the basis that the parties have chosen to transact. I note that no argument was advanced on the basis of the doctrine of estoppel by convention.

5. [85]

   The Defendants submitted that no estoppel by deed arises for three reasons.

6. [86]

   The first is that, relying on a line of cases which includes Kimberley Developments and Fischer, the Defendants say that just as a statement which purports to record receipt of consideration (commonly referred to as a ‘receipts clause’) does not form conclusive evidence that such consideration was actually received in equity, neither would a Deed Poll which records the completion of the contract found such an estoppel if there exists evidence which would suggest the contrary. Thus, because it was common ground that the deferred purchase price has not been paid by Greenway, the Deed Poll does not give rise to any estoppel: DS at [57]-[58].

7. [87]

   The second is that it would be ‘inequitable and wholly unjust’ for the Court to hold that the Deed Poll is ‘enforceable’ (which I take to mean ‘found an estoppel of the kind asserted by Greenway’) on the basis that this would provide Greenway with a windfall by obtaining an interest in the Property for wholly inadequate consideration’, when the Defendants have not acted inappropriately or unconscionably: DS at [59].

8. [88]

   The third is that the Defendants were ‘precluded from dealing with the Property without the approval of the ANZ Bank’, and that Greenway knew this by virtue of a title search attached to the original Contract, which included a disclaimer that ‘CONTROL OF THE RIGHT TO DEAL IS HELD BY AUSTRALIA AND NEW ZEALAND BANKING GROUP’. In the result, the Defendants submitted, relying on P Keane, Estoppel by Conduct and Election (3rd ed, Sweet & Maxwell, 2023) (Handley and Keane) at [7-006], that although the Bautovichs had legal title, such title was always ‘subject to and limited by the terms of the mortgage to ANZ Bank’, which Greenway was aware of and therefore no estoppel would arise: DS at [60].

9. [89]

   Further, the Defendants also filed further supplementary submissions which attacked Greenway’s reliance on Data Transfer. First, the Defendants argued that Data Transfer concerned a ‘true’ estoppel in the sense that the party estopped was not entitled to deny the truth of a state of affairs even if that state of affairs did not in fact occur, viz, the receipt of loan monies which was never actually received. Rather, on Greenway’s own case, cl 2 would actually be consistent with the Second Variation Deed (since 3 August 2018 is indeed ‘on or before’ 6 August 2018). Secondly, they submitted that the estoppel in Data Transfer was made out because it was held to be an accurate reflection of the bargain between the parties, something which cannot be true here because ‘it cannot be sensibly said that the bargain struck between Greenway and the defendants was intended to result in Greenway acquiring the Property without payment of the deferred purchase price’.

10. [90]

    In reply, Greenway denies the applicability of the line of authority cited by the Defendants (referred to above at [86]) on the present facts on the basis that cl 2 of the Deed Poll is not equivalent to a receipts clause, therefore those cases do not apply. Greenway also re-emphasised the proposition that consistency between Special Condition 23 of the Second Variation Deed and cl 2 of the Deed Poll is redolent of the fact that the latter represents the ‘true position’ as between the parties and therefore it would be inappropriate for equity to intervene.

11. [91]

    It was not until oral submissions at trial that the Defendants also raised a submission to the effect that due to the significant and irreconcilable inconsistencies arising out of the documents comprising the Contract (many of which have already been canvassed in these reasons), none of the representations in any of those documents can be said to constitute any sort of estoppel. Mr Coles KC for the Defendants puts the point thus (T44.30-40):

12. [92]

    In Greer v Kettle [1938] AC 156 at 171, Lord Maugham explained the concept of estoppel by deed as follows:

13. [93]

    The following general propositions relevant to the issues which arise in this case can be stated. First, in order for an estoppel by deed to arise the relevant statement must be certain, clear and unambiguous: Greer v Kettle at 170. The determination of that question requires a process of construction of the deed as a whole: Dabbs v Seaman (1925) 36 CLR 538 at 549-550; [1925] HCA 26 per Isaacs J. The requirement that the statement be unambiguous does not mean that it cannot be open to different constructions. In Dabbs at 550, Isaacs J adopted the following observation of Bowen LJ in Low v Bouverie (1891) 3 Ch 82 at 106:

14. [94]

    See also Caboche v Ramsay (1993) 119 ALR 215 at 237 per Gummow J.

15. [95]

    It follows from the requirement that the statement must be certain, clear and unambiguous that generally there is no estoppel where the statement sought to be set up by estoppel is negatived on the face of the instrument: Shanemist Pty Ltd v Denmac Nominees Pty Ltd [2003] QSC 373 at [23]-[25], citing Right v Bucknell (1831) 2 B & Ad 278 at 281; 109 ER 1146; RJA Morrison and HJ Goolden, Norton on Deeds (2nd ed, Wm W Gaunt & Sons, 1981) (Norton on Deeds) at 214. The relevant passage from Right v Bucknell is the following observation of Lord Tenterden CJ at 280-281 (emphasis added):

16. [96]

    Secondly, an estoppel by deed can arise from a recital or an operative provision: Data Transfer at [29]; Taylors Fashions Ltd v Liverpool Victoria Trustees Co-Ltd [1982] QB 133 at 159; PW & Co v Milton Gate Investments Ltd [2004] Ch 142 at [150].

17. [97]

    Thirdly, while descriptions of estoppel by deed are often in terms that it applies to statements of a particular fact (eg Greer v Kettle at 170) the better view is that it applies to statements of mixed fact and law, and it may extend to a statement of law consistently with the acceptance in the case of estoppel by representation that there is no distinction between representations as to law or fact: Caboche at 238; S Rares and Q Rares, The Law of Estoppel in Australia: Principles, Case Notes and Precedents, (LawBook Co, 2026) at [5.230].

18. [98]

    Fourthly, an estoppel by deed cannot be based on an implication from language which is not clear: Onward Building Society v Smithson [1893] 1 Ch 1 at 14; PW & Co at [150]. However, it may be that an estoppel by deed can be based on a necessary implication from the words used: Taylors Fashions at 159.

19. [99]

    Fifthly, an estoppel by deed is limited to an action founded on the deed brought by a party to the deed against another party to it, or in the case of a deed poll brought by the person named or sufficiently identified in it: Handley and Keane at [7-003], [7-008].

20. [100]

    Sixthly, the person claiming the benefit of the estoppel does not need to establish detrimental reliance: Labracon Pty Limited v Cuturich & Anor [2013] NSWSC 97 at [132].

21. [101]

    Seventhly, estoppel by deed is a rule of common law which, as noted in the above quoted passage from Greer v Kettle, is subject to exceptions in equity which will allow the admission of evidence contrary to the face of the deed, if such evidence tends to establish an equitable right to rectification or a right to rescission on equitable grounds. The principle that equity can ‘look behind’ the face of the deed to ascertain the true position as between the parties is not limited to those situations and extends to any claim for some form of equitable relief: Compagnie Francaise D’Assurance Pour le Commerce Exterieur t/as Coface Australia v Sims Group Australia Holdings [2013] NSWCA 418 at [96]; see also Labracon at [163].

22. [102]

    Importantly however, this does not mean that once the existence of some contrary evidence is shown, what is recorded deed is thereby automatically incapable of giving rise to any estoppel. It is only if an entitlement to relief in equity contrary to what is apparent on the face of the deed has been established would the deed no longer bind the parties. The point was emphasised in Data Transfer in the following way (at [35], emphasis added):

23. [103]

    Eighthly, generally equity will not intervene to prevent a party from relying on an estoppel by deed (eg by granting relief by rectification or rescission) where the parties have chosen deliberately to enter into a transaction on a counterfactual basis, such as where they have deliberately adopted the fiction of an antecedent payment as a convenient formula for defining future obligations: Data Transfer at [22], [39]-[40].

24. [104]

    Proposition 1(a) is that on 3 August 2018, the Contract completed. Greenway says that this is the effect of the Contract (as amended by the First Variation Deed and the Second Variation Deed), the License Agreement, the Mortgage, the Deed Poll and the Deed of Release. It also says that an estoppel by deed prevents the Defendants from contending otherwise, which is founded upon both recital E and cl 2(a) of the Deed Poll (as well as recital E of the Deed of Release). The question arises as to what ‘completed’ means in this context, as it is relevant to both the question whether proposition 1 (a) is correct and also whether the Defendants are estopped by deed from denying that it is correct.

25. [105]

    Greenway in its written submissions did not address what is meant by ‘completed’, but in oral submissions Mr Simpkins said that the word ‘complete’ did not have its ordinary meaning from ‘usage in conveyancing transactions’ (T30.50-31.4), but rather meant that the Contract had ‘come to an end’ except that there was an enduring obligation under cl 16.7, but that was ‘an obligation in debt secured by the mortgage’ (T33.15-34.32). No authority was cited for this submission, nor did the parties address the meaning of ‘completed’ in their oral or written submissions.

26. [106]

    It was observed by Buckley LJ that ‘completion’ is a term which ‘may be capable of different meanings in different contexts’: Quadrangle Development and Construction Co-Ltd v Jenner [1974] 1 WLR 68 at 72. The usual meaning of ‘completed’ in a conveyancing context (in particular under clause 16 of the standard form contract on which the Contract is based) is the payment by the purchaser of the purchase money and the delivery by the vendor of the title documents and a transfer to enable the purchaser to become registered, which are simultaneous acts to be performed interchangeably: Hawkins v Gaden (1925) 37 CLR 183 at 196; Maddison Group Pty Ltd v Goldstein (1989) 1 WAR 569 at 573; Palmer v Lark [1945] Ch 182 at 184-185; P Butt, The Standard Contract for the Sale of Land in New South Wales (2nd edition, LBC Information Services, 1998) at [15.3]. When this occurs, the contract has completed in the sense that the primary obligations of the vendor and purchaser under it have been discharged.

27. [107]

    The term ‘completed’ may also in an appropriate context mean ‘the payment of so much of the purchase money as according to the terms of the contract has to be paid upon acceptance and transfer of the title, leaving the outstanding balance of purchase money to be secured possibly by a vendor’s lien or mortgage back according to the circumstances’: De Leuil v Jeremy (1964) 65 SR (NSW) 137 at 153 per Asprey J citing Sutton v Cary (1916) 16 SR (NSW) 254.

28. [108]

    In Sutton v Cary, the plaintiffs contracted to buy from the defendants certain land, part of which was under common law title and part under Torrens title. The contract included the following terms: (a) that ‘from completion of the purchase the purchaser shall be entitled to the rents and profits of the lot or lots purchased’; (b) that within 14 days from delivery of particulars the purchasers shall tender to the vendors or their solicitors for execution a memorandum of transfer in conformity with the provisions of the Real Property Act; (c) that the deposit of £3000 was payable to the vendors upon the approval of the title, and that, as from the date of the contract, rates and taxes should be paid by the purchasers; (d) the balance of the purchase price was payable within 3 years from the date of the contract, together with interest at a specified rate.

29. [109]

    The purchasers paid the deposit upon approving the vendors’ title and then asked the vendors to provide an order on the tenants to pay all future rents to the purchasers. The vendors refused to do so on the basis that there was no completion of the purchase until the purchase price had been paid in full. The term ‘completion’ was not defined in the contract.

30. [110]

    Simpson CJ in Eq held that completion of the purchase occurred when the deposit was paid and title was accepted by the purchaser, even though the full purchase price had not been paid and the conveyance had yet to be executed. His Honour said at 257-258 (emphasis added):

31. [111]

    It may be noted that this was a decision as to the meaning of the expression ‘completion of the purchase’ in a particular provision of the contract determining when the purchaser would be entitled to the rents and profits from the land, and does not suggest that the contract had completed in the sense of ‘comes to an end’. To the contrary, it is clear that the purchase money remained outstanding under the contract and payable at a future date at interest.

32. [112]

    The contract at issue in Sutton v Cary, and the Contract here, can be contrasted with the contract in Postle v Sengstock [1994] 2 Qd R 290. That case concerned a sale and mortgage back transaction under one contract and, in light of its particular terms, the Court arrived at a conclusion regarding completion of sale similar to that for which Greenway contends here. In that case the appellant was the vendor under a contract to sell a ‘bus-run’ business to the respondents, as purchasers, for a price of $84,000. The terms of the contract made on 3 May 1988 included: (a) cl 31 which provided that ‘the vendor agrees to advance to the purchasers the whole of the purchase moneys namely [$84,000] which amount shall be repaid on or before 2nd October 1990’ together with interest at a specified rate; and (b) cl 32 which provided that as security for the loan the parties agreed that the vendor would retain title to the bus-run contracts which he was bound to transfer to the purchasers upon the repayment of the loan, and in the meantime, the purchasers were entitled to possession of the bus-runs.

33. [113]

    The purchasers took possession of the bus-runs but failed to repay the loan by the due date, following which the vendor purported to rescind the contract, to repossess the bus-run contracts and to sell two of them. The purchasers then brought proceedings for specific performance of the contract or damages in lieu.

34. [114]

    The Court of Appeal (Macrossan CJ, McPherson JA and Derrington J) held that the vendors had not been entitled to rescind the contract as its true character was an executed sale with a mortgage back to secure repayment of the purchase money lent (at 292, 297). Critically, their Honours found that cl 31 was a notional loan extended by the vendor to the purchaser in full consideration for the sale at the time of the execution of the agreement, as evident through the fact that the prescribed payments were ‘expressly related to the loan and not to unpaid purchase money’ (at 295). For that reason, the sale portion of the contract had already been performed, and the only remaining obligation incumbent on the purchasers was to repay the loan. Since the sale had completed, the only way in which the vendor could enforce his security under the mortgage was to take foreclosure proceedings, rather than (wrongfully) try to rescind a contract which had already been completed.

35. [115]

    The Court made the following observations (at 295-296):

36. [116]

    The decision in Postle v Sengstock is distinguishable from the present case because the sale agreement there was quite different from the Contract. The Contract does not involve any provision for a ‘notional loan’ by the vendor to the purchaser to satisfy the purchase price in full. To the contrary:

    1. (1)

       Under cl 16.7(a) of the Contract the balance of the purchase price remained outstanding as purchase price and not as a debt for a loan made by the vendors to the purchaser to satisfy the purchase price, as in Postle v Sengstock.

    2. (2)

       That conclusion is confirmed by the Mortgage which expresses the secured money as the deferred purchase price payable under the Contract. As the Mortgage was entered into at the same time as the Second Variation Deed, the latter is to be construed taking account the terms of the former: P Herzfeld and T Prince, Interpretation (Lawbook Co, 3rd ed, 2024) at [22.170].

    3. (3)

       While the new Special Condition 23 stated that the ‘date for completion’ is on or before 6 August 2018 and cl 16.7(a) referred to the deferred payments being due on ‘completion’, the term ‘completion’ is not defined and no variation was made to the other provisions of cl 16 (in particular cl 16.3) requiring the vendor to cause title to pass on completion which did not in fact occur.

37. [117]

    In my view, the Contract had not ‘completed’ on 3 August 2018 in any meaningful sense of that term. All that happened on 3 August was that the parties took steps towards completion: (a) the balance of the purchase price of some $10,080,000 remained outstanding under the Contract; (b) the Contract had not been stamped and consequently at that time it was not ‘available for use in law or equity for any purpose’ under s 304 of the Duties Act 1997 (NSW) and hence was only effective conditionally upon it being stamped before being relied on in court (The Official Trustee in Bankruptcy v D’Jamirze (1999) 48 NSWLR 416; [1999] NSWSC 1249 at [58]); (c) the Transfer had not been executed by that time and in any event would have been incapable of registration due to the failure of Greenway to pay the stamp duty on the Contract and the Transfer (Duties Act, s 301); and (d) while the Mortgage had been executed to secure the balance of the purchase price payable under the Contract, it was held in escrow by Mr Stoikovich pending payment of the stamp duty on the Contract and the Transfer.

38. [118]

    The fact that the Mortgage was held in escrow may not have precluded completion of the Contract, given that prima facie the Bautovichs had a vendors’ lien for the balance of the purchase price pending satisfaction of the escrow condition. However, the point remains that it was a step under the regime established by the Contract (as amended by the Second Variation Deed) towards completion of the sale transaction which had not been implemented by 3 August 2018. Indeed, none of the steps set out in the previous paragraph had been satisfied when the Bautovichs issued the Notice to Complete and the Notice of Termination.

39. [119]

    The question then arises whether notwithstanding that the Contract had not completed as at 3 August 2018, the Bautovichs are estopped from denying that fact by reason of recital E and cl 2 of the Deed Poll. An estoppel by deed can only arise if the statements about ‘completion’ having occurred on 3 August 2018 in recital E and in cl 2 of the Deed Poll were ‘certain, clear and unambiguous’ in the relevant sense. In my view, they are not.

40. [120]

    First, the two statements are different: recital E refers to completion of the ‘sale and transfer of the [Property] from the Vendors to the Purchaser (in accordance with the terms of the Contract’ whereas cl 2 refers to completion of the Contract. However, the statement that the sale and transfer of the Property from the Vendors to the Purchaser in accordance with the terms of the Contract has completed, is inconsistent with cl 3(b) and cl 4 which acknowledge that the Transfer has not yet been signed, the Contract has not yet been stamped and there is no operative Mortgage securing payment of the balance of the purchase price (as contemplated by the Contract) because it is held in escrow pending payment of the stamp duty. Further, it is not clear in light of those matters how the statement in recital E is consistent with the use of ‘completion’ in cl 2 by reference to the Contract.

41. [121]

    Secondly, in light of those differences between the two statements and the position as it existed at the date of the Deed Poll, there is ambiguity as to which of the several available meanings of ‘completed’ is being used, or indeed what meaning of that term is intended.

42. [122]

    Thirdly, Greenway contends that ‘completed’ in both recital E and cl 2 means that the Contract has completed ‘in all respects’ save for an obligation in debt secured by a mortgage over the Property. One of those respects is, clearly, the original obligation to pay the purchase price. Thus, necessarily implicit in Greenway’s interpretation of the word ‘complete’ is a submission that the purchase price for the Property is deemed as having been paid.

43. [123]

    That was not the case for the reasons given above. Nor, if the matter is approached consistently with the test stated in Low v Bouverie set out earlier, could Greenway have reasonably understood that its obligation to pay the purchase price had been discharged in full. The Contract consistently reinforced the fact that the obligation to pay the purchase price was outstanding. That much is clear from cl 16.7(a) which plainly stated that ‘[t]he purchaser must pay the price to the vendor by deferred payments… by paying to the vendor the Instalment Payments set out in clause 16.7(b) commencing on and from completion’ (emphasis added). The use of the word ‘price’ indicates clearly that the deferred payments in question were intended to go to the purchase price, rather than some new (notional) loan obligation created in satisfaction of the price as is contended by Greenway.

44. [124]

    This is emphasised by the further words of cl 16.7(a) that ‘[n]otwithstanding the vendors agree to accept the payment of the price by the deferred payments, on completion the price is due to the vendors’. It is clear that what is ‘due’ in this clause is the ‘price’, which reinforces the conclusion that the parties have not agreed that the purchase price has been paid even following ‘completion’, whatever that word may mean. There is no indication anywhere else in the Second Variation Deed or the Deed Poll that the parties departed from this position.

45. [125]

    Further, it was not reasonable for Greenway in the circumstances of this transaction to regard the phrase ‘the Contract completed’ in cl 2(a) as having acknowledged (or deemed) that all obligations under the Contract (which includes the obligation to pay the purchase price) had been completed such that the only remaining obligation was to pay off a ‘loan’ secured by the Mortgage, when the truth (ie that the purchase price has not been paid) ‘appears by the same instrument’: Right v Bucknell at 281. The terms of the Deed Poll by its reference to the Mortgage showed the true state of affairs which was that the balance of the purchase price remained outstanding as a debt to be secured by a mortgage over the Property once title was transferred to Greenway: Shanemist at [23]-[25].

46. [126]

    As the statements regarding ‘completion’ of the Contract in recital E and in cl 2(a) of the Deed Poll are not certain, clear and unambiguous, the question whether the Deed Poll involved the parties choosing to transact on a counterfactual basis (that the Contract has completed when it has not) simply does not arise. Nor is it necessary to address the Defendant's submissions summarised earlier

47. [127]

    Special Condition 24, upon which Greenway relied, does not assist its case. The fact that certain specified obligations do not cease upon completion sheds no light on what obligations have been completed. Indeed, the existence of Special Condition 24 reinforces the opposite conclusion to that for which Greenway contends. As has been shown, the Contract itself makes clear that the purchase price has not been paid. Special Condition 24, if anything, would only serve to emphasise that such an obligation, not having been fulfilled, continues to ‘have full force and effect and shall not cease on completion’.

48. [128]

    For the same reasons, the statement in recital E of the Deed of Release that the Contract completed on 3 August 2018 does not sustain an estoppel by deed.

49. [129]

    Proposition 1(b), namely that Greenway ‘became the sole proprietor of the Land’, which arises from cl 2(b) of the Deed Poll and Recital F of the Deed of Release, suffers from similar difficulties. I note that cl 3(a) of the Deed Poll uses slightly different wording (ie ‘the Purchaser holds title to the Land’ and ‘the Purchaser is the proprietor of the Land’), but there was no suggestion that there was any meaningful difference between these formulations. Since it is not in dispute that the Bautovichs have, at all times, been the registered proprietors of the Property, the basis on which Greenway sought to support Proposition 1(b) was that from the time of execution of the Deed Poll, the Property was held upon a bare trust for Greenway because ‘from that point on… it was entitled to a transfer of the property with nothing more other than the requirement to pay the stamp duty’ (T35.35-37).

50. [130]

    However, in the absence of any declaration of trust (of which there was none here), such an argument could only conceivably succeed if Greenway established that the purchase price was paid in full (whether as a matter of fact, through a notional loan on ‘completion’, or under a successful estoppel). That is because if the purchase price cannot be considered to have been paid, there is no other basis upon which a trust of the kind contended for by Greenway would come into being. For the reasons given above, Greenway has failed to establish that the purchase price was paid (in fact or under a successful estoppel).

51. [131]

    In my view, no estoppel by deed can arise in relation to cl 2(b) of the Deed Poll because it is not certain, clear and unambiguous. First, cl 2(b) states that on 3 August 2018 ‘the Purchasers became the sole proprietors of the Land’. However, cl 3(a)(iii) includes a contradictory statement that until the Transfer is registered, ‘the Vendors may rely on this Deed as evidence of their title to the Land’. This clearly recognises what is obvious from the face of the Deed Poll that the Bautovichs still have title to the Land (cl 3 and 4 revealing that a transfer of title to Greenway has not been signed or delivered to Greenway and the other documents necessary for registering Greenway on the title are held in escrow pending payment of stamp duty on the Contract).

52. [132]

    Secondly, the ordinary meaning of the expression ‘proprietor’ is the owner of property. However, it is not clear in what sense Greenway can be said to be the owner of the Property let alone the ‘sole’ owner, when it is clear on the face of the Deed Poll that at most Greenway has taken steps towards ownership and the Bautovichs remain as the registered proprietors to whom the balance of the purchase price under the Contract is still payable on terms that it will be secured by the Mortgage (once the escrow condition is met). Again cl 2(b) is contrary to the truth disclosed on the face of the Deed Poll: Right v Bucknell at 281; Shanemist at [23]-[25].

53. [133]

    In light of this conclusion, it is not necessary to address the Defendant's submissions summarised earlier.

54. [134]

    I have noted before at [82]-[83] that the argument that the Contract had completed on 3 August 2018 (or that the Defendants were estopped by deed from denying that fact) was the only ground upon which Greenway challenged the validity of the Notice to Complete. Greenway has failed in that contention for the reasons given above.

55. [135]

    Cl 9 of the standard form section of the Contract provided that: ‘If the purchaser does not comply with this contract (or a notice under or relating to it) in an essential respect, the vendor or can terminate by serving a notice...’

56. [136]

    The breaches referred to in the Notice to Complete are those in relation to the failure to pay the Instalment Payments by their respective Instalment Payment Date, under cl 16.7(b) of the Contract as amended. However, time is not expressed to be of the essence in relation to the obligations under cl 16.7(b).

57. [137]

    For that reason, breach of the obligations under cl 16.7(b), which are in their nature stipulations as to time, are generally not breaches of an essential condition. In such a case, the vendor does not have the right to terminate unless the vendor (a) serves a notice requiring performance of that obligation within a specified reasonable time and (b) there has been a failure to comply with that notice: see eg Louinder v Leis (1982) 149 CLR 509 at 513-514 per Gibbs CJ and authorities there cited. In addition, there is also a requirement that the notice itself would need to make it sufficiently clear to the party in breach that a further failure to comply with the notice will allow for the Contract as a whole to be terminated: Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1980) 166 CLR 623; [1989] HCA 23 at 637-638 per Brennan J and 654-655 per Deane and Dawson JJ; JW Carter, Carter’s Breach of Contract, (JW Carter Publishing, 3rd ed, 2024) at [5-55]-[5-56].

58. [138]

    I am satisfied that the notice to complete has made it sufficiently clear that failure to comply with the notice will allow for the Contract to be terminated – the notice by its terms plainly stated that as regards compliance with the notice, ‘time is of the essence’.

59. [139]

    I am also satisfied that the time provided for performance in the notice is reasonable. Whether the time provided for compliance with a notice to complete is reasonable is a question of fact dependent on the circumstances of the case: see eg Holland v Wiltshire (1954) 90 CLR 409 at 414 per Dixon CJ. The notice was dated 6 September 2019, and the time fixed for performance was not until 3.00pm on 9 October 2019. This gave Greenway around one month to come up with enough money to remedy the breaches, which in my view was a reasonable time.

60. [140]

    Greenway accepted in oral submissions that the time specified in the notice was reasonable and no issue was raised as to whether the Bautovichs were ready and willing to perform their obligations at the time the notice was given: Carter’s Breach of Contract at [5-57]. I take it that this is not in dispute.

61. [141]

    For these reasons, I find that the Notice to Complete was validly issued.

Issues 5: Whether the Defendants’ Notice of Termination is valid

1. [142]

   In light of my conclusion in relation to issue 4, and the fact that the breaches specified in the Notice to Complete have not been remedied within the time specified therein, the Bautovichs’ subsequent Notice of Termination was valid and they validly terminated the Contract.

Issues 6 and 7: Whether Greenway is entitled to call for the transfer of the Property under the terms of the contract via a decree of specific performance?

1. [143]

   In light of my findings in relation to issues 1 – 4, issues 6 and 7 do not arise for consideration and are both answered in the negative. When the Contract was terminated by the Bautovichs, this discharged them from performance of their future obligations under the Contract: McDonald v Dennys Lascelles Ltd (1933) 48 CLR 347 at 476-477 per Dixon J. Those obligations included causing title to pass to Greenway, through the mechanism provided for in cl 3(b) and cl 4 of the Deed Poll which are premised on the Contract remaining on foot.

2. [144]

   While cl 3 and 4 of the Deed Poll are not expressed, in terms, as variations of the Contract, it is clear from the Deed Poll (which defines the ‘Contract’ as being ‘the contract for the sale and purchase of land between the parties dated 9 March 2018…as varied by… this Deed Poll’) that those provisions did amend the Contract and formed part of it from the time of execution of the Deed Poll.

3. [145]

   Having decided that none of the estoppel claims raised by Greenway are made out, I see nothing else on these facts which would warrant the intervention of equity to nevertheless make a decree of specific performance of a contract which has otherwise been validly rescinded: see generally Tanwar Enterprises v Cauchi (2003) 217 CLR 315; [2003] HCA 57 at [37]-[39], [58]-[60] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ.

Costs

1. [146]

   Because Greenway has failed in obtaining any of the relief it seeks, I see no reason why costs should not follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. I shall make orders to that effect.

2. [147]

   The Court makes the following orders:

   1. (1)

      Amended summons dated 24 November 2025 is dismissed with costs.