Inness v Waterson A/T for Cobok Family Trust

[2006] QCA 155

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Sale of land
3. › Time of the essence
4. › Extension of time for settlement
5. › Whether mere extension of time or variation of essential term
6. › Whether extension operates as waiver of right to rescind
1. Contract
2. › Sale of land
3. › Specific performance
4. › Failure to complete on agreed date
5. › Whether extension of time granted
6. › Whether purchaser entitled to specific performance
1. Agency
2. › Ostensible authority
3. › Solicitor's employee
4. › Conveyancing clerk
5. › Whether granting extension of time within ostensible authority of solicitor's clerk
6. › Whether mere extension of time is incident of conveyancing practice
1. Appeal
2. › General civil appeal
3. › Findings of fact
4. › Credibility of witnesses
5. › Whether trial judge's preference for one witness over another was glaringly improbable or contrary to compelling inferences

Quick Take

A conveyancing clerk employed by a vendor's solicitors has ostensible authority to grant a short extension of time for settlement, and such an extension operates as a waiver of the right to rescind rather than a variation of the contract. The distinction between waiver and variation is critical: a mere extension substitutes a new date without destroying essentiality, whereas a variation requires consideration and may require writing. George v Pottinger's suggestion that a mere extension amounts to a variation of essentiality is doubted.