The matter arose from a contract of sale for a commercial property for $81,200,00. The dispute was over the obligation to pay “the balance of the Purchase Price” on the settlement date and a special contractual condition provided that the seller must pay to the buyer, by way of an adjustment to “the balance Purchase Price payable on settlement”, an amount equivalent to the value of extant incentive arrangements affecting leases on the property. The seller and the buyer disagreed on the amount of consideration to be shown on the relevant transfer forms (form 1 and form 24) and each party produced different versions of the forms at Settlement. The amount expressed in the forms affected what duty would have been payable under the relevant stamp duty legislation. The purchaser could not settle on the basis of the vendor’s forms (if they were correct) because of the liability to pay more duty. The issue was whether the seller breached its contractual obligation under to do all acts and execute all documents necessary for the purpose of completing the sale.
Christopher Johnstone and Bianca Kabel (with L Kelly QC) successfully acted for the defendant buyer and were instructed by Clayton Utz.
Sean Russell (with G Gibson QC) acted for the plaintiff, instructed by Russells Lawyers.
The judgment can be read here.
