UC is incorrect.
In Qld Specific Performance works both ways for the Vendor and the Purchaser.
If the purchaser does not settle on time then the Contract can be terminated (I have done it on a couple of ocassions) and the deposit will be lost.
The Vendor can of course allow an extension of settlement and charge penalty interest as set out in the contract conditions or if no figure is inserted the standard Law Society rate applies.
You will note that my comments did allow for the contract to be terminated...you will also note my comment about the default interest rate
I can't comment on the details of "Specific Performance" other than it was my understanding is that it is a court order??? and really just backs up my point about the courts...Specific performance is an order that is only granted upon the REFUSAL to settle a contract and the court will consider the conduct of both parties in the course of making a determination
I obviously don't know the situation upon which you withdrew, so i can't comment there.
When you crash a contract under these circumstances, it is my understanding you are relying on repudiation - which would dictate that someone is not ready or not willing to settle a contract.
It is my further understanding that repudiation only applies where the other party's words or conduct constitute an expressed or implied REFUSAL to settle on time. It is a legal minefield if you are going to argue on the grounds of conduct...and a third parties inability to comply does not necessarily constitute a refusal on the buyers part to settle.
There are more and more cases involving repudiation ending up in the courts for wrongful termination...i'd be very careful if i were going along these lines - cases involving repudiation have ended up in the high court as well.
I am not legally trained so i may have interpreted this wrong, but in
Highmist Pty Ltd v Tricare Ltd [205] QCA 357 the QLD Court of Appeal ruled in favour of a buyer who had indicated an intention to settle, but only on terms decided by a third party (in that case a court). It could be argued that in this case SQ's scenario intends to settle, but the terms (rather timing) is/are being determined by the banks...there is nothing in her statement that expresses or implies a refusal to settle...
Once again, my suggestion to is to check it out with a legal advisor ASAP...
Just on a side note, you will also be aware of clause 10.7 of the Terms of Contract that provide "If requested by the other party, each party must, at its own expense, do everything reasonably necessary to give effect to this contract"
Not as clear as it seems is it...my statements where to point out that in general - it is not a problem and a matter of a letter of explanation between solicitors will suffice and settlement will be effected by arrangement with the extension. IF however the vendor decides to crash the contract, there is legal recourse depending on how good the solicitors are etc...
as in all legal matters, nothing is in concrete until it has been tested in the highest appeals court in the land
again, happy to be corrected, but if someone crashed a contract on me in qld because of a third parties mistakes...i'd enjoy having a crack at it!!
cheers
UC
