McPhee v Zarb & Others

[2002] QSC 4

Supreme Court of Queensland

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Contract
2. › Vendor and purchaser
3. › Time of the essence
4. › Extension of time for settlement
5. › Whether agreement to extend time constitutes election to keep contract on foot
6. › Whether time remains of the essence after extension
7. › Whether purchaser entitled to rescind for subsequent failure to settle
1. Contract
2. › Vendor and purchaser
3. › Rescission
4. › Wrongful repudiation
5. › Purported rescission by party not entitled to rescind
6. › Whether wrongful rescission constitutes repudiation
7. › Whether innocent party entitled to retain deposit
1. Mortgages
2. › Rights and liabilities of mortgagor and mortgagee
3. › Release of mortgage
4. › Tender of amount due
5. › Whether mortgagee entitled to refuse tender where mortgagor reserves rights
6. › Whether conditional tender sufficient
1. Conveyancing
2. › Land titles under Torrens system
3. › Mortgagee's power of sale
4. › Protection of purchasers
5. › Whether transfer set aside for improper exercise of power of sale
6. › Property Law Act 1974 (Qld), ss 84, 87

Quick Take

An unreserved agreement by a purchaser to extend the time for settlement constitutes an election to keep the contract on foot, causing time to cease to be of the essence. The purchaser cannot then rescind for the vendor's failure to settle on the extended date without first making time of the essence again by giving reasonable notice. A purported rescission by a party not entitled to rescind is itself a wrongful repudiation entitling the innocent party to rescind and retain the deposit.