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As described by Tony Cahill, disputes concerning notices to complete “continue to dot the litigation landscape.” [1] This is because circumstances in which a notice to complete can be issued are rife with possibilities for litigation. This is where a party either sues another to secure an alleged right, or attempts to withdraw from a contract for the sale of land due to the non-completion by the other party of some alleged obligation. These disputes can be very frustrating and costly, causing a great deal of anxiety and financial pressure to both litigants. The two major categories of litigation concerning notices to complete concern:

(a)   A dispute about the validity of the notice to complete, and
(b)   A dispute relating to any responses or non-responses to the notice to complete.

Generally, clause 15 of the standard contract for the sale of land concerns itself with notices to complete, however it is important to note that this clause does not contain a full codification of the law relating to these notices and the parties rights and liabilities in respect of their issue and service. Appropriate legal advice should be obtained from a completion notice solicitor before any action is taken either by:

  • A party issuing the notice to complete, or
  • A party receiving a notice to complete.

The completion notice lawyer will need to investigate the particulars and the form of the notice and ascertain whether or not is complies with all the requirements of clause 15, any relevant special condition or additional condition (these will likely differ between contracts for the sale of land) and the general law relating to litigation of completion notice disputes. It is also important to understand the nuanced difference between various types of notices. These may give rise to different liabilities and need to be approached in accordance with their specific provisions. Cahill makes the preliminary observation that:

The notice to complete should only be used where the issuing party is seeking the other party perform their contractual obligation to complete. If a party is seeking to ensure that the other party performs any other contractual obligation, the appropriate machinery is via a notice to perform. The distinction can be significant because a series of cases have held that issue of a notice to complete may be read as a waiver of what would otherwise be rights of the issuing party.” [2]

There are many issues that potential litigants need to be aware of in relation to disputes concerning the notice to complete. Firstly, the party who is aggrieved may wish to contemplate whether or not such a notice should be drafted and served on the other side. The issuing of a notice to complete may lock the issuing party into an obligation under the contract. The scope and nature of the obligation may depend on the circumstances of each case and proper legal advice will need to be obtained first before any action is taken in this regard.

Likewise, issuing a notice to complete may not be open to an aggrieved party in certain situations. This too is highly dependent on the circumstances of the particular case. Before a notice to complete is issued, a completion notice litigator will need to conduct a detailed investigation of the contract, with particular reference to its special or additional conditions. These may alter the operation of clause 15 of the standard provisions and that may have a significant impact on the manner in which rights to issue and respond to a notice to complete can be exercised by the parties.

Broadly speaking, issuing the notice to complete will only be available to the aggrieved party if the date for completion has been reached. The notice will then stipulate another date which will be considered an essential term of the contract (but does not have to be; again this will depend on the situation and the particulars of the agreement between the parties). Failure to comply with the notice to complete will then give rise to certain rights, for example, the right of the vendor to retain the deposit and rescind or otherwise terminate the contract.

Disputes relating to notices to complete can of course be negotiated and the notice to complete litigator will be in a position to liaise with the solicitors for the other side with the aim of reaching a settlement to that dispute. If no negotiated settlement to a notice dispute can be found, defences may be available to a party who is on the receiving end of the completion notice. These will depend on the nature of the dispute and the facts of the case. Questions going to the reasonableness of the time allowed for completion under the notice to complete may arise, and this could impeach the validity or force of the notice itself.

In any event, it is understandable that where two parties enter into an agreement to buy and sell land, and where some difficulty arises which prevents the completion of the contract, disputes concerning notices to complete can further frustrate the process even if they may seem to be the only available device to coerce the side in default to discharge its duties under the agreement. Litigators who deal with notice to complete disputes will be able to provide the appropriate legal guidance to assist with:

  1. Advice on the terms of clause 15 of the standard contract for the sale of land.
  2. Advice in relation to any relevant special conditions or additional conditions.
  3. Advice concerning the merits of drafting and issuing a notice to complete.
  4. Drafting and settling a notice to complete.
  5. Service of a notice to complete.
  6. Advice in relation to any response to a notice to complete.
  7. Dispute resolution concerning the drafting, issue, service of the notice to complete.
  8. Drafting or responding to a Statement of Claim or Summons in relation to the specific performance of a contract.

[1] Tony Cahill, “When Conveyancing Goes Wrong” Paper delivered to the Australian Institute of Conveyancers (undated) p 9.

[2] Ibid at pp 10-11.

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