Mitano Pty Ltd v Hardoin[2005] QSC 402

SUPREME COURT OF QUEENSLAND

     The proceedings

[1] The central point at issue in these proceedings, commenced on 11 November 2005, by the plaintiff purchaser for specific performance of a contract for the sale and purchase of land dated 8 October 2005 entered into between it and the defendant vendors, is whether the defendants waived the plaintiff’s breach of contract in failing to pay the balance deposit on the due date.

[2] The defendants counterclaim for removal of a caveat lodged in respect of the land by the plaintiff. They also seek a declaration that they are entitled to the deposit paid or payable under the contract and claim the amount of the deposit as a debt.

[3] An expeditious determination of the proceedings is sought as another contract for the sale of the land was entered into by the defendants after their purported termination of the subject contract. Settlement under the former contract is due to take place on 8 December 2005.

Payment of the deposit

[4] A deposit of $5,000 was paid when the contract was entered into. Under Item O of the Items Schedule of the contract, a balance deposit of $95,000 was payable “thirty days from the date of contract”.  Clause 3 of the standard conditions, however, provided that the deposit be paid “by the Purchaser to the Stakeholder immediately upon the formation of the Contract”. The specific provision in the Items Schedule plainly overrides the content of the printed clause[1] and no argument was advanced to the contrary by the defendants’ counsel on trial. The balance deposit thus became payable no later than 7 November 2005.

[5] The issues raised on the pleadings

[6] In their defence filed on 22 November 2005, the defendants admit:

“that, viz-a-viz the Plaintiff, Orchid Avenue Realty Pty Ltd trading as Ray White Surfers Paradise … was the real estate agent appointed by the defendants for the purpose of selling the land”.

[7] The defence, however, asserts that:

“(i)Ray White was not the defendants’ agent generally in respect of the contract;

(ii) in relation to the receipt and retention of the deposit payable under the contract, Ray White was exercising an independent function under the contract, namely that of stakeholder.”

[8] Paragraph 3 of the amended reply in the form it was in on the commencement of the trial admits that “the agent was not the defendants’ agent generally in respect of the contract” and alleges that the defendants’ solicitor was “their agent generally in respect of the contract”. Leave was given during the hearing to withdraw the admission and to add the allegation: “…Ray White was the defendants’ agent for acceptance of the balance deposit and communications in relation thereto.”

[9] The statement of claim[2] alleges that the defendants purported to terminate the contract by facsimile transmission to the plaintiff’s solicitors from their solicitors at 4.05pm on 8 November 2005. The defence admits (and alleges) that the defendants terminated the contract by the facsimile transmission.[3]

[10] The statement of claim alleges that the defendants waived any entitlement to rely upon late payment of the balance deposit because of the dealings between Mr Pfitzner, the sole director of the plaintiff, and Mr Munnery, an employee of the stakeholder, on 7 and 8 November, including Mr Munnery’s advice to Mr Pfitzner “that both the defendants’ solicitor and the male defendant had authorised him to accept the cheque for the balance deposit”. The first telephone conversations on the morning of 8 November between Mr Munnery and Mr Hardoin and between Mr Munnery and Mr Deeb, a solicitor in the employ of the defendants’ solicitors, are also relied on.

[11] In the alternative, the plaintiff alleges that a term should be implied in the contract to the effect that through no fault of the plaintiff payment of the deposit cannot be made on the due date “through the inadvertence or unavailability of the stakeholder … the buyer’s obligation to pay is suspended until that can be done”. In the further amended reply and answer, the plaintiff also seeks relief against forfeiture.

The events of 7 November 2005

[12] Just before 5pm on that day Mr Munnery, the real estate agent with whom the parties to the contract dealt with respect to it, telephoned Mr Pfitzner in order to continue discussions which had taken place in the course of the day concerning the contract’s due diligence requirements and the plaintiff’s request for extensions of time. Mr Pfitzner said that he would call Mr Munnery back. He did not. Mr Munnery telephoned him again at approximately 5.15pm and a further discussion took place about the contract’s due diligence requirements.

[13] In the course of that discussion the payment of the balance deposit was raised and Mr Pfitzner said that he would ring Mr Munnery back later to make a time to meet that night to pay it. Mr Munnery acquiesced in that course. He later turned off his mobile phone as he did not want to be interrupted over his evening meal and, through inadvertence, did not turn it back on until the following morning. He then discovered that there were two voice messages left on his phone on the previous evening by Mr Pfitzner with a view to arranging payment of the deposit moneys that night.

[14] Mr Pfitzner had made out and signed a cheque for the deposit late in the afternoon, but, apart from attempting to contact Mr Munnery, in the manner I have mentioned made no attempt to pay it to Ray White Surfers Paradise.

[15] At about 8.30am on 8 November Mr Munnery telephoned Mr Pfitzner and explained what had happened the previous evening. He proposed that he pick up the cheque around 11am. Mr Pfitzner responded that he did not know where he would be at that time but said that he would be in touch with Mr Munnery to make arrangements for the cheque to be collected.

[16] Mr Munnery then had telephone conversations with Mr Hardoin, one of the defendants, and with Mr Deeb. In an affidavit admitted into evidence, he swore that he explained what had happened the previous evening and that he was informed by each of Mr Deeb and Mr Hardoin that “they were quite happy for (him) to collect the deposit from Mr Pfitzner later in the day”. In his oral evidence he said that when he spoke to each of Mr Hardoin and Mr Deeb he informed them of what had happened on the evening of the 7th that, in effect, the cheque for the deposit was ready and that he was going to pick it up. Each of them, according to Mr Munnery, said that was “okay”. It was put to him that neither Mr Deeb nor Mr Hardoin had said either that he was quite happy for the cheque to be collected or had answered “okay” in response to his intimation. It was not suggested to him that either of them had demurred, either expressly or implicitly, to his proposed course of action.

[17] The conversation with Mr Hardoin took place at 8.39am and lasted for 1 minute 32 seconds. The conversation with Mr Deeb commenced at 10.14am and lasted for 1 minute 25 seconds.

[18] After the conversation with Mr Deeb, Mr Munnery telephoned Mr Pfitzner and arrangements were made for Mr Munnery to collect the deposit. In his affidavit Mr Munnery swore that in the course of the telephone conversation he told Mr Pfitzner that he had explained the events of the previous evening to Mr Deeb and Mr Hardoin and “that both Mr Deeb and Mr Hardoin had informed (him) that they were quite happy for (him) to collect the deposit as arranged”. An identical account of the conversation was given by Mr Pfitzner in his affidavit evidence.

[19] Mr Deeb, after conferring with Mr Hardoin, telephoned Mr Munnery at 10.42am and told him not to pick up the cheque. He added that if the plaintiff delivered a cheque for the deposit he was to say “I am accepting the deposit pending my client’s instructions”. Mr Deeb further instructed Mr Munnery to do nothing pending Mr Deeb’s calling him at 11.30am. Mr Munnery told Mr Deeb that he had already arranged to collect the deposit.

[20] Mr Deeb did not call Mr Munnery as arranged. In defiance of his instructions, the cheque for the deposit was collected by Mr Munnery from Mr Pfitzner at about 12 noon on 8 November 2005 and paid into Ray White’s trust account.

[21] Mr Hardoin’s version of his first conversation with Mr Munnery on 8 November is that Mr Munnery congratulated him and told him that the property was sold.

“He asked if I was happy and I replied yes and no. Mr Munnery asked me why? I said I wasn’t very happy because I had received a better offer. Mr Munnery asked if the better offer was from Mr Wilkie and I replied yes. I then asked Mr Munnery what the plan was from here? Mr Munnery told me he would collect a cheque for the balance deposit from Mr Pfitzner. I did not affirm Mr Munnery’s proposed course of action. I told him that I would call Mr Deeb.”

[22] In cross-examination, Mr Hardoin said that as Mr Munnery did not mention the deposit he asked him about it and was told “I will pick it up during the morning”.

[23] Mr Deeb’s recollection of his first telephone conversation with Mr Munnery on 8 November was that he telephoned Mr Munnery who told him that the plaintiff had not terminated the contract and that “he was to go and collect” the balance deposit from the plaintiff. This recollection is derived from, and accords with, a contemporaneous diary note made of the conversation by Mr Deeb. The diary note suggests that Mr Deeb was told that the cheque was to be collected that morning. Mr Deeb also recalled being told that payment of the deposit was due the day before.

[24] At the time of these conversations Mr Deeb and Mr Hardoin were aware that an offer to purchase the property at a higher price had been submitted in writing, by facsimile transmission, by a Mr Wilkie. An original signed copy of the offer, however, had not been received. Mr Deeb said, and I accept, that in the course of his conversation he was aware that the defendants might wish to terminate the contract “in the event that the plaintiff did not comply with its obligations under” it and that he was “conscious of not saying anything which might prejudice the defendants’ rights in that regard”.

[25] Nevertheless, neither he nor Mr Hardoin, although being made aware by Mr Munnery that he was intending to collect the cheque for the balance deposit, said anything to him to suggest any disapproval of that course of action. They both understood that, unless instructed to the contrary, Mr Munnery would proceed to collect the cheque and pay it into the stakeholder’s trust account to be held pursuant to the terms of the contract. That is apparent from, among other matters, the fact that Mr Hardoin and Mr Deeb, in a conversation about 10.38am, discussed whether Mr Munnery should be called and instructed not to collect the cheque for the balance deposit.

[26] Mr Deeb’s recollection is that he was not informed by Mr Munnery about the mistake on the evening of 7 November concerning the collection of the cheque until in the course of a telephone conversation with Mr Munnery at about 1.20pm. A diary note records “TM says he has messages on his mobile from last night about (collecting) the cheque”. That note is at the foot of a sheet on which Mr Deeb has made a contemporaneous note of the 1.20pm phone conversation. There is a line above the note across the page which separates it from the balance of the note. In Mr Deeb’s recollection nothing further was said by Mr Munnery in explanation or supplementation of that part of the discussion. If there was a reference by Mr Munnery to the telephone messages of the evening of 7 November, it is improbable that the discussion would have been as terse as the diary note records.

[27] I am of the view that recollections of Mr Deeb and Mr Hardoin are defective in relation to the conversations which took place on 8 November and, in particular, in respect of their respective first conversation with Mr Munnery.

[28] Mr Munnery, as the defendants’ counsel was at pains to bring out in his cross-examination, despite being the defendants’ agent, was actively assisting the plaintiff and was most anxious to ensure that the contract proceeded to completion. In these circumstances, particularly as he had played a role in the plaintiff’s failure to pay the deposit, it is unlikely that he would not have attempted to justify the plaintiff’s default at the first available opportunity. My assessment of Mr Munnery’s nature and character fortifies me in this conclusion as does the evidence that he had been repeatedly urging the defendants to grant an extension of time in respect of due diligence.

[29] Mr Deeb’s diary notes are terse to put it mildly. They do not purport to record even the substance of relevant conversations. I consider it likely that Mr Munnery did tell Mr Deeb and Mr Hardoin of the mix up of the night before in his first telephone conversation with each of them on 8 November. The lack of reference to this matter in Mr Deeb’s diary note is explicable, in part, by its brevity and by Mr Deeb’s focus on the facts which appeared to him at the time to be central rather than peripheral.

The defendants’ right to terminate for breach

[30] Time was of the essence of the contract. Failure to pay the balance deposit on the due date, on the face of it, constituted a breach which entitled the defendants, under clause 3.2, to terminate the contract and exercise the rights expressed in clause 13.3.[4] Clause 13.3 provides that if the vendor terminates the contract pursuant to clause 3.2 or clause 13.1 it may elect to “declare the Deposit (or so much of it as shall have been paid) forfeited … and in either case the Vendor may recover from the Purchaser as a liquidated debt the Deposit or any part of it which has not been paid by the Purchaser”.

The issues in respect of agency and affirmation

[31] In Green v Sommerville,[5] Barwick CJ, in words referred to with approval in the judgment of the court in Ciavarella v Balmer,[6] said:

“The law is, as I apprehend it, that a vendor, who has a right to take steps unilaterally to rescind the contract for the default of the purchaser, loses the right to rescind out of hand if, notwithstanding such default, he treats the contract as continuing on foot.”

[32] The following observations of Fullagar J in Carr v J A Berriman Pty Ltd,[7] with whose reasons Williams, Webb and Kitto JJ agreed, provide a further concise statement of relevant principle:

“Where a contract contains a promise to do a particular thing on or before a specified day, time may or may not be of the essence of the promise. If time is of the essence, and the promise is not performed on the day, the promisee is entitled to rescind the contract, but he may elect not to exercise this right, and an election will be inferred from any conduct which is consistent only with the continued existence of the contract.”

[33] On the face of it, a communication by a vendor to a defaulting purchaser who has not paid a balance deposit to the effect that late payment will be accepted is conduct “consistent only with the continued existence of the contract”. But the defendants argue that any communication in this regard by Mr Munnery to Mr Pfitzner was not a communication on behalf of the defendants to the plaintiff and, consequently, not capable of constituting an election.

[34] An alternative argument is that there was in fact no affirmation. For there to be an election to affirm the contract, the act of the purchaser in intimating that it would accept the deposit needed to be “consistent only with the continuance of the contract on foot”.[8] Here, it is said, an intimation that the deposit would be accepted, or even acceptance of the deposit, cannot meet that description as there was a right under the contract to payment of the deposit by midnight on 7 November and such right would continue notwithstanding termination.[9] Consequently, it is said, there can be no election not to rescind as a result of any acceptance of payment. The acceptance would be equally consistent with mere acceptance by the defendants of their contractual due. It is further submitted, again on the authority of Tropical Traders Ltd v Goonan[10] that the purchaser was not bound to elect at once but could “keep the question open, so long as it did nothing to affirm the contract and so long as the [plaintiff’s] position was not prejudiced …”.

The requirements of affirmation

[35] When the balance deposit was not paid by midnight on 7 November the plaintiff was in breach of contract.[11] The defendants had two choices. They could affirm the contract and exercise rights under it or they could rescind. As Tropical Traders Ltd v Goonan and other cases make plain, an election did not have to be made immediately, but in this case there is no question concerning lapse of time and its possible consequences. The question is simply whether there was an election to affirm.

[36] On the defendants’ argument there would have been no affirmation even if the defendants themselves had collected the cheque for the balance deposit and provided it to the stakeholder.

[37] In Tropical Traders Ltd v Goonan, upon which the defendants place so much reliance, the payment which was accepted and relied on by the purchasers as constituting an election was not the payment, the failure to make which was alleged by the vendor to give rise to its right of rescission. The contract was one for the sale and purchase of land in which, apart from the deposit, the purchase price was payable by four equal sums at 12 monthly intervals with a final balance payment. Interest was payable on the balance of the purchase price outstanding. The final payment of the balance purchase price was not made on the due date but the interest due under the contract up to that date was paid on the following day when the purchasers requested an extension of time for payment of the balance purchase price.

[38] It was held that acceptance of the interest payments did not constitute an election not to rescind (for late payment of the final instalment of purchase moneys) as the interest was payable in respect of a period prior to the date upon which the final instalment of purchase price was due. Kitto J explained:[12]

“Accordingly the [sum for interest] being interest in respect of a completed period of possession, would have been recoverable by the [vendor] even after an election to rescind: cf. McDonald v. Dennys Lascelles Ltd. (1933) 48 CLR 457, at p 476. By accepting payment of it, therefore, the appellant did not elect against terminating the contract.”

In McDonald v Dennys Lascelles Ltd,[13] Dixon J explained the consequences of termination on existing contractual rights as follows –

“When a party to a simple contract upon a breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. Both parties are discharged from the further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected. When a contract is rescinded because of matters which affect its formation, as in the case of fraud, the parties are to be rehabilitated and restored, so far as may be, to the position they occupied before the contract was made. But when a contract, which is not void or voidable at law, or liable to be set aside in equity, is dissolved at the election of one party because the other has not observed an essential condition or has committed a breach going to its root, the contract is determined so far as it is executory only and the party in default is liable for damages for its breach.”

[39] These principles establishing the defendants’ entitlement to recover the balance deposit even after termination, although relevant to the question of affirmation, are hardly definitive.

[40] Consequently, it is said, there can be no election not to rescind as a result of any acceptance of payment. The acceptance would be equally consistent with mere acceptance by the defendants of their contractual due.

[41] Support for these contentions was said to be found in Balls-Hendley v Ambler[14] and Price v Worwood.[15] Those cases are authority for the proposition that for receipt of rent to operate as a waiver of a forfeiture of a lease, the rent must be in respect of a period after the forfeiture was incurred. The reason for this, according to Martin B, in the latter case, is “that the entry for a condition broken does not at all affect the right to receive payment of a pre-existing debt.”[16]

[42] Both of those cases, however, concerned forfeitures for a breach other than non-payment of rent and, in particular, the non-payment of the very rent later paid and relied on to support the claim of waiver. It is well settled that acceptance of rent which accrued due after the date on which the right to forfeit arose will waive the right to forfeit for any breach known to the landlord on the date on which the rent fell due.[17]

[43] Here, the breach relied on by the defendants is the late payment. Acceptance of the payment constitutes acceptance of the performance of the outstanding obligation and is consistent only with the continued existence of the contract. Another way to express it is that, by acceptance, the purchaser elects to keep the contract on foot and against rescission for breach.

[44] The deposit is “an ‘earnest’ of the bargain or its performance (Brien v Dwyer (1978) 141 CLR 378, 385) that is designed to demonstrate the sincerity of the contracting party who is to pay it.”[18] The deposit is also part of the purchase moneys. If the contract was not on foot, the defendants could recover a sum equivalent to the amount of any unpaid deposit as a liquidated sum, but that is a different thing to accepting, while the contract is on foot, the payment of a sum to the stakeholder to be held as the balance deposit payable under the contract. I acknowledge that in this case Mr Munnery’s authority to accept the deposit had been withdrawn by the time he accepted it. The focus of the plaintiff’s claim was thus the communication between Mr Munnery and Mr Pfitzner before the withdrawal of authority.

[45] The discussions and acts relied on by the plaintiff concerned, not the recovery of a liquidated sum by the defendants from the plaintiff, but a sum to be provided by the plaintiff by way of balance deposit to be held by the stakeholder in such capacity. The defendants, through Mr Munnery, conveyed to Mr Pfitzner that the late payment of the deposit was not a matter of concern to the defendants. Consequently, the discussion between Mr Munnery and Mr Pfitzner about the former’s picking up the cheque was consistent only with the contract remaining on foot and constituted an affirmation of it. The question of agency and words and conduct relied on to constitute agency and affirmation are now addressed in more detail.

The agency question

[46] I conclude that Mr Hardoin and Mr Deeb by their silence in the first conversations on 8 November represented to Mr Munnery that the course of action proposed by him under which he would collect the cheque for the balance deposit from the plaintiff and deposit it at the stakeholder’s office met with their approval.  The circumstances were such that if either of them disagreed with Mr Munnery’s proposal he could be expected to say so. Mr Munnery was the representative of the defendants’ agent and had called to outline a course of action in relation to the contract. He was not presenting the defendants with a fait accomplit but, I infer, seeking to ascertain the defendants’ attitude and, if necessary, urge that any default be overlooked.

[47] I find that at the end of the conversation with Mr Hardoin, as a result of what was said by Mr Munnery and said and omitted to be said by Mr Hardoin, Mr Munnery understood that the defendants accepted that the contract was proceeding and that the course of action outlined by him was approved. Mr Hardoin was careful not to let Mr Munnery sense that there may be a problem with the contract and that assisted in producing the result I have just mentioned. I do not accept, however, that Mr Hardoin said words to the effect that he was “quite happy” for Mr Munnery to collect the cheque. I consider it probable that he would have avoided making any such positive statement. I am rather less confident that he would have avoided using an expression such as “ok” but do not find, on the balance of probabilities, that he did. I find that Mr Munnery’s understanding remained unaltered after his conversation with Mr Deeb.

[48] I digress in order to record reservations about the evidence of Messrs Pfitzner and Munnery. Mr Munnery was very much in the plaintiff’s camp. His affidavit, or at least the statement from which it was derived, was effectively prepared by Mr Pfitzner in discussion with Mr Munnery. Reference to both of their affidavits shows that their compilation was a joint effort and that the two witnesses purport to recall the critical events and conversations in identical terms. It is thus impossible to tell whether the recollection of words used professed by one of them comes from adopting the recollection of the other or whether it is the product of a recollection formed as a result of discussions between them. I consider that their professed “joint” recollections must be approached with considerable caution as must their oral evidence of conversations. However, despite Mr Munnery’s vested interest in the outcome of the proceedings and his blatant disregard for the interests of his principal, I formed the impression that he was attempting to provide his honest recollection in his oral evidence.

[49] I am unable to determine precisely what Mr Munnery told Mr Pfitzner after speaking to Mr Hardoin and Mr Deeb but I am satisfied that Mr Munnery said to Mr Pfitzner words to the effect that he had spoken to Mr Hardoin and to Mr Deeb, that there was no problem with the contract and that it was okay for him to collect the cheque for the deposit. The necessary inference to be drawn from this communication was that the defendants would accept the deposit, notwithstanding its late payment, and proceed with the contract. Conversely, the communication was inconsistent with the retention of the right to rescind. It constituted an affirmation and once made could not be withdrawn.[19]

[50] It is argued on behalf of the defendants that what Mr Munnery said or did in relation to the deposit moneys does not assist the plaintiff as Mr Munnery was acting as stakeholder under the contract, not as the defendants’ agent. The following arguments were also advanced. The fact that the defendants may have agreed to or acknowledged the course of action proposed by Mr Munnery cannot convert his actions as stakeholder into actions as the defendants’ agent. “An act of a third party who is not an agent for relevant purposes does not become an act of agency merely because the third party’s intentions or conduct are acknowledged or not objected to.” Also, Mr Hardoin and Mr Deeb did not authorise Mr Munnery to communicate their agreement or acknowledgement to Mr Pfitzner.

[51] As a general proposition, it is right that in acting in relation to the acceptance of deposit moneys, the stakeholder is not acting as the vendor’s agent. It may also be accepted that had Mr Munnery, without reference to Mr Hardoin or Mr Deeb, proceeded to collect the plaintiff’s cheque and deposit it in the stakeholder’s trust account, there would not have been any conduct on the part of the defendants which could give rise to an election. The defendants’ difficulty though is that they were aware, through Mr Hardoin and Mr Deeb, of Mr Munnery’s intentions and, by implicitly approving his conduct, authorised his actions. Included within the scope of his authority was the ability to convey to the plaintiff the defendants’ approval of his conduct which bore directly on the role he was undertaking. It is relevant to these conclusions that, to the knowledge of Mr Hardoin and Mr Deeb, Mr Munnery had been playing an active role in relaying communications from the plaintiff to the defendants in respect of the performance of contractual obligations. Ray White was the vendor’s agent as well as stakeholder. The collection of the cheque, one would think, was something done in an agent’s capacity rather than as stakeholder. The stakeholder’s role is to hold the deposit, not take actions designed to facilitate or enable the performance of contractual obligations. Furthermore, it was apparent to Mr Hardoin and Mr Deeb at the time of the critical conversations that Mr Munnery would be speaking to Mr Pfitzner about the matters discussed with them when he collected the cheque, if not before.

The implied term argument

[52] It was argued on behalf of the plaintiff that the contract contained an implied term that if “through no fault of its own on the day for payment of the balance deposit … payment cannot be made through the inadvertence or unavailability of the stakeholder … the buyer’s obligation to pay is suspended until that can be done”.

[53] Such a term does not meet the tests for implication of a contractual term referred to by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW.[20] In particular, such a term is not necessary to give business efficacy to the contract. Nor is it so obvious that “it goes without saying” and I doubt that it is “reasonable and equitable”. Much was made by the plaintiff’s counsel of the fact that it was only at 5pm on 7 November that the plaintiff was required to be satisfied with the results of its due diligence enquiries. Prior to 5pm, if not so satisfied, it could give notice terminating the contract. It was argued that having regard to this it must have been contemplated that payment of the balance deposit was likely to be made somewhere between 5pm and midnight on 7 November. Even if this were so, one would think that there would be no particular difficulty in the purchaser putting in place arrangements to pay the deposit at the office of the stakeholder at about 5pm in the unlikely circumstance that its decision to proceed was not taken until about that time. If it wanted the luxury of further time within which to make payment on the due date for payment, arrangements could have been put in place to effect that. The contract contemplates, not that payment be made to the employee or principal of the stakeholder who happens to be the person with the carriage of the matter on behalf of the stakeholder, but to the stakeholder itself. It is a large firm of real estate agents with an office in Surfers Paradise and a modicum of forethought would have ensured the ability to make timely payment at that office or to a person authorised to accept payment on behalf of the firm. Surely, a purchaser wishing to settle outside of normal business hours bears the onus of putting in place appropriate arrangements to permit settlement.[21]

[54] It was argued that the decision of the Court of Appeal in Re Ronim Pty Ltd[22] supported the implication of the above term. It does not. In that case, on the date fixed for completion it was impossible for the purchaser to search the title because the Land Titles Office computer was inoperative. It was held that it was uniform conveyancing practice to ascertain the state of the title before settling and not to settle without a search of the title on the day of settlement. The court concluded that a term should be implied with the effect that where a title search could not be carried out through no fault of the purchaser as a result of malfunction in the Land Titles Office “the obligation to complete is suspended until that can be done”. The implication of the term was based in part on the existence of a conveyancing practice. It was also based in part on the necessity, at common law, for a vendor to show and make good title at settlement.

Conclusion

[55] The plaintiff has succeeded in establishing that the contract was affirmed after its breach. There is no issue about its willingness and ability to settle and it is entitled to specific performance. I will hear submissions as to the formal orders and on costs.

[56] The findings of fact which entitle the plaintiff to succeed are slightly different from those pleaded. It does not appear to me, however, that had the pleadings accorded strictly with the facts found that either party would have adduced any further or different evidence or that the respective cases would have been conducted differently. Consequently, if the plaintiff wishes to amend its pleadings to allege in the alternative, the facts as found, I can see no difficulty in giving leave for it to do so.