DISTRICT COURT OF QUEENSLAND

1. [1]
   By this application the applicants seek a declaration that they have effectively rescinded a contract between them and the first respondents for the sale of certain land, and a declaration that they are entitled to forfeit the deposit paid by the first respondents under the contract and held by the second respondent as stakeholder. The applicants allege that they were entitled to rescind the contract because of the first respondents’ failure to settle on 23 November 2012, in accordance with a notice to complete. The first respondents agree that the contract has come to an end,^[1] but say that that was as a result of their termination of the contract on 24 October 2012, on the ground that the applicants had failed to settle that day. The first respondents cross apply for an order for the return of the deposit. On the hearing, counsel for the first respondents conceded that, if the first respondents had not validly terminated the contract on 24 October 2012, it had been validly terminated by the applicants in November 2012 when the first respondents failed to settle. The real issue therefore is whether the purported termination of the contract by the first respondents on 24 October 2012 was effective.

Background

2. [2]
   On 9 February 2012 the applicants as vendors entered into a written contract to sell to the first respondents a particular parcel of land at the Gold Coast.^[2] Time was of the essence of the contract. The purchase price was $299,000, and the first respondents paid a deposit totalling $29,900 to the second respondent, which was at the time acting as solicitors for the applicants. Under the contract settlement was subject to the registration of a community management scheme and the issue of a certificate of classification, and on 14 September 2012 the second respondent gave notice that the relevant plan had registered, and enclosed a copy of the registration confirmation statement and certificate of classification.^[3] They alleged that settlement was due on 28 September 2012.

3. [3]
   By a letter dated 10 October 2012 the second respondent advised instructions to extend time for settlement until 24 October 2012, with time to remain of the essence.^[4] It is common ground that the contract did not settle on 24 October 2012, and that the first respondents did not attend the place for settlement specified under the contract and tender performance that day. At the relevant time, the land in question was subject to a mortgage, and as a result by the terms of clause 2(d) of the contract, settlement was to occur at the head office in Brisbane of the Westpac Bank, the applicants’ solicitors not having nominated the place for settlement prior to the date of settlement, as under the contract they were entitled to do.

4. [4]
   Ordinarily, for a purchaser to be entitled to rescind a contract because of a failure to settle on the date fixed for settlement, it is necessary for the purchaser to attend at the place fixed for settlement and tender performance of the contract. However, if the vendor behaves in such a way as to indicate that attending at the place nominated for settlement and tendering performance will be a waste of the purchaser’s time, the purchaser is relieved from the obligation of making formal tender. In such circumstances, provided that the purchaser can show that it was ready, willing and able to complete the contract in accordance with its terms, the purchaser is entitled to rescind the contract. A purchaser may be ready and willing, for the purposes of this requirement, even if the purchaser, given the opportunity, would prefer not to have to settle. What matters is whether the purchaser is willing to settle in accordance with the contract, not whether the purchaser is keen to settle.

5. [5]
   The first respondents submitted that the behaviour of the applicants and their solicitors, in the period leading up to the date fixed for settlement, was such as to give rise to a reasonable belief on the part of the solicitors for the first respondents that it would be a waste of time for the first respondents to tender in accordance with the terms of the contract. Counsel for the applicants however submitted that what mattered was whether the applicants had, in the period up to the time of settlement under the contract, behaved in such a way that the applicants were repudiating the contract, and that the applicants’ conduct did not amount to repudiation. It was submitted that in these circumstances there had been no anticipatory breach on the part of the applicants, and the first respondents were not entitled to terminate in circumstances where they had not tendered performance under the contract. It was further submitted that, in any event, the behaviour of the solicitors of the applicants was not such as to give rise to a reasonable belief that tendering would be a waste of time, and that the purchasers were not ready, willing and able to complete on 24 October 2012, and so were not entitled to rescind.

6. [6]
   Resolution of this matter therefore requires findings as to exactly what passed between the solicitors for the parties in the period leading up to and on the date for completion, and a conclusion as to the applicable law, and the legal consequences of what occurred. The court has jurisdiction to decide this question, and give relief by way of declaration: District Court Queensland Act 1967 s 68(1)(d)(xiii).^[5] The proceeding was commenced by originating application, on the basis that the only or main issue in the proceeding is an issue of law and substantial dispute of fact is unlikely: UCPR r 11(a). The matter proceeded on the basis of affidavits, including affidavits as to what was said in various conversations. At the hearing, I invited the parties to file further affidavits if they wished to do so, and make further submissions in writing, and indicated that if after considering the matter I concluded that the legal position was such that I could make any necessary findings of fact on the basis of the affidavit material, I would do so, but if I concluded that the legal position was such that the outcome would or could turn on the content of conversations, or the context in which particular things deposed to had been said in such conversations, such that I considered that I should hear full evidence as to what had been said in such conversations before deciding the matter, I would not decide the application but give directions for the matter to proceed to a trial or hearing.

7. [7]
   I have before me some evidence as to conveyancing practice in the form of conveyancing protocols published by an insurer as a guide to active risk management^[6]. It occurs to me that this may not necessarily be the same as what occurs in practice. I have a certain amount of knowledge of conveyancing practice which I have picked up over the years, but I was concerned that, where the outcome of a dispute of this nature may turn on conveyancing practice, particularly current conveyancing practice in relation to this particular type of transaction, I could well come to the conclusion that it would not be appropriate for me to act upon such knowledge of conveyancing practice as I do possess, and that the matter ought to be the subject of further evidence. In such circumstances, I would have to give the parties the opportunity to put on further evidence of conveyancing practice.

The conveyancing process

8. [8]
   The evidence discloses a good deal of information about what happened in the period up to settlement, but not everything. No factual conflict arose on the affidavits, and their effect may be summarised as follows: By the letter of 14 September 2012 advising a date of settlement of 28 September 2012, the solicitors for the applicants advised they looked forward to the “receipt of the transfer documents at your earliest convenience.”

9. [9]
   On 17 September 2012 the solicitor for the first respondents sent a letter to the solicitors for the applicants enclosing documents of transfer and asking them to return the transfer after signing “on my undertaking to hold it to your order pending completion and to use it for no purpose other than stamping.”^[7] There was a request the document be returned without folds or creases; presumably this fits some requirement of the Titles Office. The solicitors for the applicants were asked to “include your details of your suggested settlement adjustments and your proposals as to a time and place for completion.”  There was a cautionary statement about not treating this as acceptance of the seller’s title or a waiver of any rights, and a statement that it would be assumed there were no unregistered documents or dealings in respect of the property unless advised to the contrary.

10. [10]
    On 18 September 2012 a legal secretary employed by the solicitors for the first respondents telephoned the solicitors for the applicant and advised that there was an error in the transfer document and that a fresh transfer would be emailed, and also advised that a copy of the trust deed under which the applicants held their relevant property as trustees was required.^[8] The amended transfer documents were emailed shortly thereafter with a letter similar to that of 17 September.^[9] On 19 September 2012 the first respondents’ financier advised the legal secretary that it required the instrument number to be noted on the transfer, it needed a certificate of currency from the Body Corporate, and it was waiting on re‑approval of the finance as the original approval had lapsed after three months.^[10] The first two matters were drawn to the attention of the solicitors for the applicants, who advised that they had not sent the amended transfer documents for signature and that further amended transfer documents could be forwarded the next day.^[11] That occurred under cover of yet another request for the executed documents to be provided for the purpose of stamping, and another request to provide a copy of the trust deed.^[12]

11. [11]
    On 25 September 2012 the legal secretary telephoned the solicitor for the applicants, who was then unavailable; later that day she returned the call and advised that the applicants would be signing the transfer documents the next day, that she did not have the details required for the PPSR but would try to sort that out and that she would email a copy of the Body Corporate Certificate of Insurance.^[13]

12. [12]
    On 25 September 2012 the solicitors for the applicants emailed a copy of a certificate of currency of insurance issued that day in respect of the relevant Body Corporate confirming the existence of the policies set out therein in respect of specified sums insured.^[14]

13. [13]
    The letter of 10 October 2012 from the solicitors for the applicants agreeing to an extension of time for settlement until 24 October noted that any negotiations were without prejudice to their client’s rights. A letter from the applicants’ solicitors was said to have been sent to the solicitors for the respondents by facsimile on 17 October 2012, with a draft settlement statement and list of cheque requirements, and seeking advice if any changes were required.^[15] The solicitors for the first respondents asserted that no such facsimile was ever received by them,^[16] and ultimately the solicitor for the applicants accepted that it was not sent.^[17]

14. [14]
    There is evidence in form of a reference in a letter^[18] to the fact that there was a telephone conversation between the solicitors for the first respondents and the solicitors for the applicants late on 19 October 2012, but no evidence from either party as to the content of that conversation. I am a little surprised by this omission. Then on 19 October 2012 the solicitor for the first respondents sent a letter by facsimile to the solicitors of the applicants advising that settlement had been booked for 3.15 pm on 24 October 2012 for Scott Ashford, Brisbane, and pointing out that they had not provided the signed transfer, the vendors’ trust deed and the vendors’ details for the PPSR search as previously requested.^[19] Those solicitors also requested draft settlement figures.

15. [15]
    On 22 October 2012 the solicitor for the first respondents was advised of the funds that would be available on settlement from their financier.^[20] She then calculated the balance payable under the contract, and advised the first respondents of that amount. On 23 October 2012 a greater amount was deposited in cash into the solicitor’s trust account, and she was provided with a bank cheque in the amount payable as stamp duty on the contract and transfer. That was sent by express post to her Brisbane agent with the original contract for sale for stamping, with an instruction to hold the documents pending receipt of the executed transfer from the vendors’ solicitors.^[21] The funds from the financier were in fact available in the trust account of that company’s solicitors awaiting settlement on 24 October 2012, and the solicitor acting for that company has deposed that it was in a position to proceed to settlement on that day.^[22]

Day for settlement

16. [16]
    There is nothing in the evidence before me showing any communication passing either way between the solicitors for the parties after the letter sent by fax late on 19 October until approximately 12.30 pm on 24 October, the date for settlement, when the solicitor for the applicants telephoned the solicitor for the first respondents. The only evidence that I have about that conversation is in an affidavit of the solicitor for the applicants,^[23] the substance of which was as follows:

“I can recall during this conversation Ms Gallagher verbally advised me that her clients were not in a position to settle on 24 October 2012. At this time, I asked her whether the first respondents would be seeking an extension and she responded that she would have to take instructions from her clients but she would get back to me.”

17. [17]
    My preliminary view is that I would not regard that statement as evidence that the first respondents were not ready, willing and able to settle on 24 October. Given the hour, and the fact that no specific arrangements had been made for settlement on that day, I suspect that the explanation for this is that the solicitor for the first respondents had, because of an absence of any prior communication from the solicitor for the applicants, formed the view that it was going to be a waste of time attempting to settle that day, and had therefore not made any arrangements for such an attempt, and considered that by that hour it was too late to seek to make such arrangements. There is however no evidence of this.

18. [18]
    At about 2.18 pm the solicitors for the applicants sent by facsimile to the solicitors for the first respondent’s a letter^[24] which omitting formal parts stated as follows:

“We confirm that we had tried to telephone you this morning to obtain your confirmation that we could sign the transfer on your behalf and also stamp using your stamping details. We confirm that we are still in a position to do this. The transfer document is with our Gold Cost settlement agent at present. The alternative is for you to sign and stamp the transfer at settlement. We note that settlement is due at 3.15 pm today at SAI Global Southport.”

19. [19]
    The last assertion was apparently not correct. The contract dealt with settlement in clause 2(d) as follows:

“The parties agree that settlement shall be effected at a place to be notified (verbally or in writing) by the seller’s solicitors prior to the date of settlement. If not so notified, the place of settlement shall be:

1. Where the Lot at the date of settlement is mortgaged – the head office in Brisbane of the mortgagee;
2. In any other case – the office of the DERM, Brisbane.”

20. [20]
    There is no evidence that the applicants’ solicitors had notified settlement at SAI Global Southport (or anywhere else) prior to the date of settlement. At that date the relevant land was subject to a registered mortgage to the Westpac Bank,^[25] and it follows the place of settlement was at the head office in Brisbane of the Westpac Bank. I have no idea where that was, but presumably it existed. The solicitor for the applicants has deposed that prior to 24 October 2012 (he did not say when prior to that date) he had contacted a representative of SAI Global, the representatives for Westpac, and confirmed that it would be ready with a signed release of the Westpac Mortgage at settlement of the agreement on 24 October 2012.^[26]

21. [21]
    He went on to say that, had the solicitors for the first respondents indicated that they wished to proceed to settlement of the agreement in Brisbane or at some other convenient location, he would have contacted SAI Global to arrange for a signed release of the Westpac mortgage to be available at the relevant location for settlement. He did not say at what location he had arranged with SAI Global for the signed release of the mortgage to be prior to 24 October 2012. He does not, and indeed probably could not, give evidence that, had he requested a signed release of the Westpac mortgage to be available at the head office of Westpac in Brisbane at some time after 12.30 pm on that day, a signed release of the Westpac Mortgage would in fact have been available at that place at that time.

22. [22]
    In a separate affidavit^[27] he deposed to having, again prior to 12.30 pm on 24 October 2012, instructed Prime Legal Services to attend the settlement on that date and had provided the transfer documents for the sale of the land. He did not say otherwise what arrangements he had made with Prime Legal Services in relation to settlement. There is the additional cryptic assertion that, had the first respondent’s wished to proceed to settlement in Brisbane, he would have directed them to attend at the relevant location for settlement with the executed transfer documents.

23. [23]
    The affidavits of the applicants’ solicitor are notable principally for what they do not contain: any explanation of why, if he was arranging for settlement at a particular place and presumably at some particular time, none of this was communicated to the solicitors for the purchasers. There is no suggestion that any of it was. There is no explanation for the failure to communicate. Unsurprisingly, the contract was not settled on 24 October 2012. By a letter sent by fax to the solicitors for the applicants at 4.57 pm that day, the solicitor for the first respondents purported to rescind the contract.^[28]

Settlement Statement

24. [24]
    One issue which arose during argument was whether there was an obligation on either party to provide a settlement statement prior to settlement. There was no express obligation in the contract. My understanding of usual conveyancing practice is that a settlement statement is provided by one party to the other prior to the date for settlement so that details of the amounts payable, and the form of payment, that is to say cheques payable to whom in what amount,^[29] are arranged and agreed prior to the date of settlement.

25. [25]
    The significance of a settlement statement was considered by the Court of Appeal in New South Wales in Carrapetta v Rado [2012] NSWCA 202 at [51]-[57]. The analysis is interesting because it collects some differing views which have been expressed about its significance by different judges. The issue in that case was whether the provision of a settlement statement which contained figures which in fact were wrong amounted to repudiation of the contract, on the basis that it indicated that the party concerned was prepared to settle only in a way which was not in accordance with its obligations under the contract. There was nothing in the settlement statement which was sent to indicate that the party was insisting upon the settlement on the basis of that statement, and in those circumstances unsurprisingly the Court of Appeal concluded that forwarding an incorrect settlement statement did not amount to repudiation of the contract. That is not the point that arises in the present case.

26. [26]
    What seemed to be significant for present purposes, in my opinion as presently advised, is that, although the solicitors for the applicants prepared a proposed settlement statement for forwarding to the solicitors for the first respondents, in accordance with my understanding of the usual practice, it was never sent, nor was there any communication that the vendors were not proposing to provide this information prior to settlement. I accept that the failure to provide a settlement statement prior to settlement was not a breach of contract by the vendors. It is not necessary for me to say anything else now.

The effect of the failure to communicate 

27. [27]
    In Mahoney v Lindsay (1980) 55 ALJR 118 Gibbs J, whom the other members of the court agreed, said at p 120: “It was open to the learned trial judge to infer that the appellant’s solicitor acting on behalf of the appellant did impliedly indicate that it was useless for the respondent to attend with the purchase money, since the appellant did not intend to perform his part of the contract. I agree with the Court of Appeal that the appellant had dispensed the respondents from fulfilment of the condition of the contracts and that the respondents were entitled to specific performance.”  In that case the question was whether the failure to tender meant that the purchasers could not show that they were ready, willing and able to complete the contract on the date of settlement.

28. [28]
    In Ireland v Leigh [1982] Qd R 145 the place of settlement under the contract was the office of the vendor’s solicitor. As pointed out by DM Campbell J at p 147 “as the time for completion drew near the (vendor) seems to have undergone a change of heart about selling. Her solicitor … became incommunicado.”  Details of this were given, including that on the date of settlement attempts by the solicitor for purchaser to speak to the solicitor for vendor were unsuccessful, merely eliciting the advice that the latter was not expected to be available to speak to him that day and that no other person in the office would be able to attend to the matter. The solicitor for the vendor said that in fact he had the documents prepared and in his office for execution, the appellant was available to sign them on short notice if required, and his office was open for business from 8:00 am until 5:00 pm that day:  p 148. The following day the vendor purported to terminate the contract because of the failure of the purchaser to tender.

29. [29]
    Connolly J, with whose reasons Lucas SPJ agreed, said at p 152: “The only conclusion one can draw from the evidence is that the vendor’s solicitor deliberately conveyed, by his staff, throughout (the date of settlement) the impression that there was no point in attempting to settle the transaction or indeed in attempting to have any dealings with his office in relation to the transaction that day. … Where the place for settlement is the office of the vendor’s solicitors it would obviously be a breach of [the implied obligation to do all things necessary to secure performance of the contract] to close the office. In my judgment the vendor’s solicitor did much the same. Tender of performance is not after all a ceremonial act and if the purchasers’ solicitors are informed that there will be no one present to whom the tender of performance can sensibly be made that are virtually informing them that the vendor does not intend to perform her part of the contract.”  His Honour said that the case was governed by Mahoney v Lindsay (supra).

30. [30]
    That decision was followed by the Court of Appeal in McPhee v Zarb [2002] QCA 530. In that case the vendor was having difficulties in securing the release of a mortgage, and there had already been one abortive settlement, after which the purchasers did not rescind. There was some issue about whether a further date for settlement was fixed, but in fact neither party attended on that date. Williams JA, with whom the other members of the court agreed, said at [26]: “There was never any communication to the purchasers that the vendor was in a position to settle. The vendor’s solicitor did not comply with his undertaking to provide the solicitor for the purchasers with details of the cheques which would be required to effect settlement on 22 June. In those circumstances the vendor effectively created the impression that there was no point in the purchaser’s attempting to settle the transaction on 22 June because the vendor was not in a position to give clear title.” 

31. [31]
    His Honour went on to refer to authority and continued at [27]: “It is true, as those cases demonstrate, that the obligations of vendor and purchaser with respect to settlement are concurrent obligations and, for example, a vendor who is unable to complete because of an inability to give title cannot rescind on the ground the purchaser failed to tender the purchase price on the due date. But those cases also make it clear that a purchaser, who did not tender because of an intimation from the vendor that the vendor would be unable to complete, will be able to rescind provided the purchaser was not incapable of settling on that date. (See in particular Foran v Wight at 425 and Rawson v Hobbs (1961) 107 CLR 466 at 481).”

32. [32]
    Reference may also be made to a statement by Cohan J in Blacktown City Council v Fitzgerald (1990) 6 BPR 13409 at 13414, a passage quoted apparently with approval by the Court of Appeal in Carrapetta v Rado (supra): “The solicitors for the vendors were entitled to consider not only positive statements of intention but a failure to carry out usually conveyancing procedures in order to gage if there was an intimation by the purchaser that it would not be attending on settlement. The assessment proved to be true. The failure by the purchasers solicitors to give figures in the usually way was in fact as well as in theory an indication that they would not be in attendance. … In my opinion the failure to carry out usual conveyancing steps was an indication that the purchaser would not be represented at the place of settlement. The vendors did not attend that settlement, not because they were unwilling or not ready to complete but because the failure of the purchasers solicitors to carry out usual steps was a clear intimation that they would not be attending.”

33. [33]
    In Park v Brothers (2005) 80 ALJR 317 the court referred to earlier authority and said at [43]:

“If the conduct of the party in breach of contract prevents the performance by the other party of the condition, then it has been said to be ‘evident from common sense’ that it is ‘equal to performance’ of the condition. The result has been explained sometimes in terms of waiver, and sometimes in terms of estoppel. Lord Mansfield said that ‘reason’ dictated that if one party stops the other offering performance by showing an intention not to perform ‘it is not necessary for the first to go farther, and do a nugatory act’.”

Analysis

34. [34]
    The present case is I think reminiscent of Ireland v Leigh in the dearth of communication from the solicitors for the vendors in the period leading up to the date fixed for settlement. The requests to return the executed memorandum of transfer for the purposes of stamping were ignored. It is true that under the contract the vendor’s obligation on settlement was limited to the provision on an unstamped memorandum of transfer: Clause 2(b). However my understanding is that it is in accordance with the usual practice of financiers, including banks, financing the purchase of land to require the memorandum of transfer to be stamped prior to settlement. That was in fact the requirement of the first respondents’ financier on this occasion.^[30] For that reason, on my understanding the usual practice is that the signed memorandum of transfer is made available to the solicitors for the purchaser prior to the date for settlement, on their undertaking not to use it other than for the purpose of stamping.

35. [35]
    No doubt in a particular case a vendor is entitled to depart from that practice without being in breach of the contract, but my preliminary view is that a vendor proposing to depart from that practice is under an obligation to give reasonable notice of that intention to the solicitors for the purchaser, at least in a case where it is known that the purchasers are obtaining finance. That was apparent from the fact that the contract was subject to finance.^[31] There may have been no obligation under the contract to agree settlement figures before the date for settlement, but my understanding is that that is what is ordinarily done.

36. [36]
    One other thing which was not the subject of any communication from those solicitors was any arrangement as to the time for settlement. Where, as here, the contract is silent as to the time for settlement, my understanding of usual conveyancing practice is that it is usual for a time to settle to be arranged prior to the day for settlement, bearing in mind that the times are to be arranged not just between the solicitors for the vendor and the purchaser, but also with the representatives of the existing mortgagee and the incoming mortgagee, both of whom will also have to be present on settlement. I expect that in practice it is frequently the requirements of those representatives rather than the preferences of the solicitors for the parties that are the operative considerations.

37. [37]
    In the present case the contract is silent as to the time for settlement, and there was no evidence of any agreement between the parties as to the time for settlement, so it is unnecessary to consider the contractual effect of such agreement, although the time clause in the contract was that time was made of the essence “in all cases and in every respect”: Clause 19.^[32] Because no time for settlement was agreed, settlement could be in principle have occurred at any time subject to the availability of the specified place for settlement, the head office of the Westpac Bank in Brisbane. I assume that that is not open 24 hours a day, although there was no evidence as to when it is open, whether ordinary business hours (9am to 5pm) or ordinary banking hours, but I would assume in the absence of evidence to the contrary that the office would not have been open after 5.00pm. The letter of rescission was actually sent at 3 minutes to 5pm, assuming that the facsimile machine of the solicitor for the purchasers kept correct time, but my preliminary view is that in a practical sense by the time the contents were communicated to the solicitor for the vendors it was too late for the parties to attend at the head office of the bank, so that communication of rescission was not premature.^[33]

Ready, willing and able

38. [38]
    It is a requirement that the party, in order to rescind because of a failure of the other party to settle, be able to show that it was ready, willing and able to settle the contract according to its terms. If there had been a tender, that has been shown, otherwise it must be proved.

39. [39]
    In the present case there is evidence that the purchasers had the funds available, both from their financier and the balance of the money required, to pay what was required to be paid at settlement. It was not submitted on behalf of the applicants that the calculations of the solicitor for the first respondents as to the balance payable under the contract on settlement were inaccurate. An issue arises, on the evidence, because the solicitor for the purchasers’ financier indicated that his client required the transfer to be stamped on settlement, and so inferentially would not have provided the funds if it had not been stamped. Had that solicitor and the representative of the purchaser in fact attended at settlement and then been offered an unstamped memorandum of transfer, the financier would not have provided the funds required to settle and settlement would not have occurred.

40. [40]
    My preliminary view however is that the applicants are not entitled to rely on this to show that the purchasers were not able to settle on 24 October. This is because the failure to have a stamped transfer was due to their failure to comply with my understanding of ordinary conveyancing practice in making the transfer available for stamping prior to the date for settlement. My preliminary view is that, if they were proposing to depart from that practice on this occasion, they were required to give reasonable notice of that intention, so as to give the purchasers a reasonable opportunity at least to attempt to make other arrangements.

41. [41]
    In Foran v Wight (1989) 168 CLR 385 Mason CJ at p 396 said:

“If the repudiating party by his refusal to perform or other conduct intimates to the innocent party that he need not perform an obligation which is a condition precedent to the performance by the repudiating party of his obligation, and does not retract that intimation in time to give the innocent party an opportunity to perform his obligation, that party may be excused from actual performance of the condition precedent. The repudiating party then waives complete performance of the condition precedent and his conditional promise becomes unconditional.”

42. [42]
    That I suspect is the point here. Accepting that the vendors were entitled to depart from usual conveyancing practice, I suspect that there was an obligation on them to give reasonable notice of that, so that the purchasers had the opportunity to seek to meet that situation, either by making some special arrangement with the financier, or in some other way. There was no evidence about this, because there was no notice given of any intention to insist upon the provision of an unstamped memorandum of transfer on a hypothetical settlement, so the purchasers had no opportunity even to investigate how that difficulty could be overcome.

43. [43]
    In the facsimile sent on the day of settlement the solicitor for the applicants suggested ways which, I suspect, might have permitted that difficulty to be overcome, if reasonable notice had been given so as to put such a plan into operation. That was suggested of course only after the solicitor for the first respondents had expressed the view that the matter was not going to settle. There was however no evidence on this. In the circumstances, it is not necessary for me to come to a final view on this point.

44. [44]
    I note that the solicitor for the purchasers practices in Lowood, and although she had town agents there may well have been practical constraints in getting everything organised for a settlement on that day when she had up until then been reasonably proceeding on the basis that the matter was not going to proceed to settlement. I suspect that the practical constraint was arranging to collect the executed memorandum of transfer and have it stamped prior to settlement. I do not know how long that takes, but I expect it takes some time; any dealing with any government office usually does. If it were just a matter of walking up to a counter the practice of doing it in advance of settlement would probably not have arisen. The solicitors subsequent conduct suggests that the statement was made in a context where she considered that it was too late in the day to attempt to arrange settlement that day, and for that reason it was too late for her to depart from the assumption she had made on the basis of the applicants’ conduct that the settlement would not occur that day. This was not however the subject of specific evidence. If I were asked to decide the case on the existing evidence, I expect I could draw inferences as to these matters, but I have not been.

45. [45]
    There was no direct evidence that the first respondents were willing to settle on 24 October, but they had their finance available, and on 23 October the funds necessary to enable settlement to occur were deposited into the solicitor’s trust account, and a bank cheque was obtained and provided to the solicitors. That indicates that they were willing to settle at that stage, and in the absence of other evidence, and if I concluded that there was a reasonable explanation for the failure to settle the following day, I might have been prepared to draw the inference that they were willing to settle on 24 October in accordance with the terms of the contract. In the circumstances, that does not arise.

Conclusion

46. [46]
    It will be apparent from these reasons that my analysis of this matter reached a point where I was proposing to act, to some extent, on my understanding of usual conveyancing practice. As well, I was a little reluctant to decide the matter on the basis of the existing evidence, given the gaps I have identified, but was willing to do so if both parties agreed. I therefore arranged for my associate to e-mail both parties as follows:

“His Honour has asked me to advise that he has a preliminary view, on the basis of the evidence before him and his own understanding of conveyancing practice, that it is in accordance with usual conveyancing practice that:

1. the memorandum of transfer after exclusion is made available to the purchasers’ solicitors prior to the day for settlement for the purpose of stamping.

2. the solicitors for the parties will agree settlement figures prior to the day for settlement.

3. the solicitors for the parties will agree on a time for settlement prior to the day for settlement.

If either party wishes to contend that any of these preliminary views is in error, and wishes to put on evidence to the contrary, please advise me.

Also, his Honour has asked me to clarify that, apart from that issue, both parties seek that his Honour decide the matter on the basis of the evidence already before him.

If neither party wishes to contest that view of conveyancing practice, and both parties answer the second question in the affirmative, his Honour should be in a position to deliver judgment tomorrow morning at 10 am. If that does not occur, his Honour will then be away on leave for some weeks.

May I please have your prompt response?”

47. [47]
    The responses were prompt. The solicitors for the applicants advised that their clients were not prepared to accept the formulation set out in that e-mail in those terms, and did not ask me to decide the matter on the basis of the evidence already before me. I therefore will not do so. I will give directions for the further conduct of this matter, after hearing the parties on that matter.