by Tim O’Dwyer M.A., LL.B
Contractual time limits which run out between Christmas and New Year should, as this Blog has previously shown, ring alarm bells for purchasers and their legal advisers. Nevertheless, neither developer Bannercorp* Pty Ltd nor its solicitors heard so much as a tingle when a critical condition in Bannercorp’s time-of-the-essence purchase contract (dated 3rd August, 2007) was mutually extended from 90 to 150 days from the contract date. This new deadline (for “lodging” Bannercorp’s Development Application) fell due on 31st December, 2007.
Meanwhile the vendors, Mike and Kate Moran*, realised that they had undersold their acreage property. When another developer offered a significantly higher price, Morans entered into a separate contract with that purchaser – subject to the existing contract being cancelled by 3rd January, 2008.
Despite some eleventh hour argy-bargy about when Morans were contractually obliged to counter-sign the Development Application, by midday on 31st December Bannercorp had everything ready to lodge with the Council.
That Monday was not a public holiday in this rural shire, but the Council offices were closed for Christmas-New Year – as they had since 21st December . Undeterred, Bannercorp put its application (and accompanying cheque) through a slot in the Council’s door around 4.20 p.m.
Next day Morans’ solicitors sent Bannercorp’s solicitors this “Happy New Year” fax:
“As your client has not lodged the application on time, we give notice of termination”.
Bannercorp’s solicitors’ rejected the termination, and explained how the application had been “submitted to Council by its overnight mail box.” Morans were unmoved.
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