Dipika Investments Pty Ltd v Australian Liquid Distribution Pty Ltd [2021] QSC 315

SUPREME COURT OF QUEENSLAND CITATION: Dipika Investments Pty Ltd v Australian Liquid Distribution Pty Ltd [2021] QSC 315 PARTIES: DIPIKA INVESTMENTS PTY LTD ACN 629 006 917 (first applicant) AND NARSEY PTY LTD CAN 634 713 429 AS TRUSTEE FOR THE C & K FAMILY TRUST (second applicant) AND HDCK PTY LTD ACN 624 652 428 (third applicant) v AUSTRALIAN LIQUID DISTRIBUTION PTY LTD ACN 614 787 245 (respondent) FILE NO/S: 11645/21 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 3 December 2021 DELIVERED AT: Brisbane HEARING DATE: 15 October 2021 JUDGE: Freeburn J ORDERS: 1. The applicant’s application for specific performance of three business sale contract entered into with the respondent be dismissed. 2. The parties will be heard on the issue of costs. CATCHWORDS: CONTRACTS – FORMATION OF CONTRACTUAL RELATIONS – AGREEMENTS CONTEMPLATING EXECUTION OF FORMAL DOCUMENT – WHETHER CONCLUDED CONTRACT – WRITTEN CONSENT – where the applicant entered into three interdependent sale contracts with the respondent – where the contract were for the sale of three businesses – where the contract required the -- 1 of 30 -- 2 consent of landlord for the assignment of the lease – whether emails received by the landlord’s solicitors were signed and in writing for the purposes of the contract – whether the landlord’s consent had to be provided by way of Deeds of Assignment – whether one of the contracts required the mortgagee’s consent to the assignment – whether the consent had to be acquired on, or before, the Date of Completion – whether the respondent validly terminated the contract – whether the contract should be specifically enforced 400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302, mentioned. Happy Lounge Pty Ltd v Choi Lee Pty Ltd [2020] QDC 184, mentioned. Marek v Australasian Conference Association [1994] 2 Qd R 521, mentioned. Masters v Cameron (1954) 91 CLR 353, cited. Segacious Pty Ltd v Fabrellas [1991] 1 Qd R 471, mentioned. COUNSEL: P Hackett (first applicant) G Handran QC and M Downes (respondent) SOLICITORS: H Drakos & Company (first applicant) Moore Lawyers (respondent) REASONS Introduction [1] Until May this year, the three applicant companies operated three separate franchises of ‘The Vape Joint’ at North Lakes, Beenleigh and Browns Plains. In each case ‘The Vape Joint’ is a retail shop which sells electronic cigarette and vaporisers to the public. The franchisor is a company called Futureworld Operations Pty Ltd (“Futureworld”), a company associated with the respondent, Australian Liquid Distribution Pty Ltd (“ALD”). [2] The parties fell into dispute. On 20 May 2021 Futureworld commenced proceedings in the District Court against the three applicants. The proceedings were defended. On 31 August 2021, there was a mediation of the dispute. The mediation was successful and so the parties executed a deed of settlement to resolve the proceedings. The effect of the deed was that all three applicants -- 2 of 30 -- 3 (the “Sellers”) agreed to sell their businesses to ALD (the “Buyer”). On 2 September 2021, pursuant to the deed, the parties entered into three separate contracts of sale for each of the three businesses. Each of those contracts was to complete on 30 September 2021. The settlement of each of the three contracts was dependent on the others settling. [3] Unfortunately, the contracts were not completed on, or before, 30 September 2021. There is a contest about what transpired at settlement; the parties have fallen into a further dispute. On 1 October 2021, the Buyer purported to terminate the three contracts because the three Sellers were not ‘ready willing and able’ to complete. The Sellers rejected the Buyer’s purported termination, affirmed the contracts and required the Buyer to complete its purchase of the three businesses on 5 October 2021. The sales did not complete and so on 6 October 2021 the applicant/sellers brought this application for specific performance. [4] The central issue is whether or not the Buyer validly terminated the three interdependent1 business sale contracts (mostly in the standard REIQ form) for the purchase of three ‘Vape Joints’.2 It is necessary to examine each of the grounds for terminating the contracts.3 The Terms of the Contracts [5] The deed specified that the contracts are subject to the assignment of the existing leases to the purchaser in each case.4 [6] Clause 6.1 of each contract provided that: The balance of the Purchase Price…must be paid…on the date for Completion…in exchange for: (a) the relevant instrument of lease relating to the occupation of the premises; (b) a transfer of the Seller’s interest in the lease properly signed and 1 Each contract ‘was subject to and conditional upon’ the others: Special Condition 4. 2 The parties to the North Lakes Contract are Dipika Investments Pty Ltd and ALD. The parties to the Beenleigh Contract are Narsey Pty Ltd as Trustee for the C & K family trust and ALD and the parties to the Browns Plains Contract are HDCK Pty Ltd and ALD. 3 Various grounds have been proposed but those addressed in these reasons are the grounds that were pursued. 4 Clause 3.1.7 of the deed. -- 3 of 30 -- 4 (if appropriate) capable after stamping of immediate registration with the competent authority. [emphasis added] [7] Thus, as is conventional where a property or a business is sold, clause 6.1 requires an exchange. It is anticipated that the Buyer brings to the settlement the cash or bank cheque and that sum is exchanged for the instruments supplied by the Seller, which give the Buyer the leasehold interest in the property. The nature of those interdependent and concurrent promises was explained by Byrne J in Segacious Pty Ltd v Fabrellas: Now, the obligations of the vendor and purchaser under this contract are interdependent and concurrent. Under the general law, the purchaser’s obligation under an open contract for the sale of land to pay the price and the vendor’s obligation to make and show good title are ‘simultaneous acts to be performed interchangeably’: Palmer v. Lark [1945] Ch. 182, 184–185. Clause 2 of the R.E.I.Q. contract achieves the same result. It stipulates: ‘The balance of the purchase price … shall be paid … in exchange for possession … together with a duly executed transfer in favour of the purchaser …’.5 [8] That case, of course, was a contract for the sale of land. The three contracts here are contracts for the sale of businesses operated from leased premises. However, the contracts here are similarly worded and the principle is the same. The obligations of the parties in clause 6.1 are interdependent and concurrent. The only difference is that here the Sellers’ obligations were not to show good title but to produce ‘the relevant instrument of lease’ and ‘a transfer of the Seller’s interest in the lease properly signed and (if appropriate) capable after stamping of immediate registration’. [9] Three points should be noted about clause 6.1. The first is that clause 6.1 is obviously speaking of production of documents by the Seller. That is obvious from the use of the expressions ‘instrument of lease’ and ‘properly signed’. The evidence purpose of the provision is to enable the Buyer to be able to, walk from the settlement and to immediately register the Buyer’s leasehold interest.6 The second point is that clause 6.1 is not specific about the documents to be produced by the Seller. The expressions ‘relevant instrument of lease’ and ‘a transfer of the Seller’s interest in the lease’ are capable of 5 [1991] 1 Qd R 471 at 478. 6 Subject to paying any relevant stamp duty. -- 4 of 30 -- 5 describing different documents. One reason for that is because the contracts contemplate that the Buyer may take an assignment of a new lease or may take a fresh lease.7 [10] The third is that the interdependent and concurrent obligations in clause 6.1 are not the same as the obligations in clause 24.2 (explained below). Clause 6.1 requires that, at settlement, the Buyer hand over the money and the Seller hand over the instrument of lease and a transfer of the Seller’s interest in the lease. In other words, it is clause 6.1 that requires a ‘Form 1 Transfer’ that can be immediately registered in the Titles Office (subject to stamping). On the other hand, clause 24.2 does not necessarily require anything to be exchanged at settlement. There is nothing interdependent and concurrent about the promise in clause 24.2. The clause imposes an obligation on the Seller to assign the lease and obtain the lessor’s consent, and any mortgagee’s consent. The Seller must perform that obligation before or on the date of Completion. [11] In each of the three contracts, clause 22.1 contained the usual provision that time is of the essence of the contract. [12] Clause 24 includes provisions about the assignment of the lease in each case: 24 Assignment of Existing Lease 24.1 … 24.2 The Seller must on or before the date of Completion assign or cause to be assigned to the Buyer the lease of the premises and obtain the consent of the lessor and any mortgagee (if applicable) to such assignment, which is to be at the cost and expense of the Seller. If as a condition of consent the lessor requires a deed of covenant from the Buyer then the costs of that deed of covenant must be paid by the Seller. 24.3 This Contract is conditional upon the lessor and any mortgagee of the premises consenting to the assignment of the lease of the premises from the Seller to the Buyer. If those consents are not given by the date of Completion, the Buyer may by notice in writing to the Seller terminate this Contract. If so all Deposit and other monies received by the Seller or the Deposit Holder on account of the Purchase Price shall be refunded to the Buyer by the Seller or the Deposit Holder as the case may be. 24.4 The Seller will apply for any consent referred to in Clause 24.2 and 7 See clauses 24 and 25. -- 5 of 30 -- 6 the Buyer will supply such references and do all such things reasonably required by the Seller or the lessor in considering any such application, and both parties must use their best endeavours to obtain any such consents as expeditiously as possible, but in any event not later than the date of Completion. [emphasis added] [13] And so, clause 24.2 requires the Sellers to provide both an assignment of the lease and to obtain the consent of the lessor, and any mortgagee, to that assignment. [14] The words of clause 24.2 are clear concerning the need for the consent of the mortgagee. The Seller is obliged to obtain the consent of the mortgagee if there is a mortgage over the property. That is the purpose of the words: ‘The Seller must…obtain the consent of… any mortgagee (if applicable) to such assignment.’ The words ‘any’ and ‘(if applicable)’ are plainly designed to enable the REIQ sale of business form to cater for the situations where there may or may not be a mortgage. In the event that there is a mortgage over the property, the mortgagee’s consent is necessary.8 That is because the Buyer is entitled to clear title.9 [15] Clause 24.3 creates a separate condition. The contract is conditional upon both the lessor and the mortgagee consenting to the assignment. The mortgagee’s consent is required because, without the mortgagee’s consent to the assignment, the Buyer’s interest in the property will not be valid against the mortgagee. The Chronology [16] The chronology of correspondence exchanged between the Buyer’s solicitors and the Sellers’ solicitors is as follows: (a) On 6 September 2021, the Buyer’s solicitors emailed the Sellers’ solicitors enclosing letters they had sent to each of the lessors, seeking their consent to the assignment of the leases. They said the Sellers were welcome to also contact each of the lessors to obtain their 8 Rosengren DCJ reached a similar conclusion in Happy Lounge Pty Ltd v Choi & Lee Pty Ltd [2020] QDC 184 at [57]. 9 The Buyer is entitled to a leasehold interest that is not subject to being defeated by the mortgagee. In the Torrens system the assignment needs to be registered to be effective as a legal assignment: sections 60, 61 of the Land Titles Act 1994 (Qld). -- 6 of 30 -- 7 consent.10 Of course, under clause 24.2 it was the Sellers’ obligation to obtain the lessors’ consent in each case. (b) On 7 September 2021, the North Lakes lessor sent a letter to the Buyers solicitors setting out the terms on which the lessor would consent to the assignment.11 Those conditions included: ‘Execution by the parties of a deed of consent to assignment of lease prior to settlement.’ (c) On 8 September 2021, the Sellers solicitors sent emails to each of the lessors confirming the sale, requesting the lessors’ consent, and asking for the lessors’ requirements.12 (d) On 16 September 2021, the Buyer’s solicitor emailed the Sellers’ solicitors enclosing letters received from the solicitors for two of the three lessors. Those lessors proposed certain conditions and in the case of the North Lakes shop the lessor included a draft deed. The enclosed letters from the lessors’ solicitors are not part of the exhibit but it is clear from the Sellers’ solicitors’ letter that both lessors proposed deeds of covenant to which the Buyer was generally in agreement.13 (e) On the same day, 16 September 2021, the Sellers’ solicitors emailed a response saying, ‘please submit the (Buyer’s) requested changes to the solicitor for North Lakes,’ and saying that the conditions proposed by the lessor for Beenleigh appear to be reasonable.14 (f) At this point, the parties to two of the three contracts contemplate that the consent to the assignment would be recorded in a deed and that the parties would be bound once they signed the deed. In other words, two of the three consents fell within the third category in Masters v Cameron15 on the basis that none of the parties indicated an intention to be immediately bound and the expectation is that the parties will 10 Mr Castrisos’ first affidavit at 95. 11 Mr Moore’s affidavit at 13. 12 Mr Castrisos’ first affidavit at 108-110. 13 Mr Castrisos’ first affidavit at 111. 14 Mr Castrisos’ first affidavit at 112. 15 (1954) 91 CLR 353 at 360. -- 7 of 30 -- 8 not be bound until the formal deed is executed. (g) On 20 September 2021, the Sellers solicitors emailed to the Buyer’s solicitors an amended copy of the deed of consent in which the North Lakes lessor has accepted the amendments proposed by the Buyer. They enquired whether the Sellers were still negotiating the terms of the deed with that lessor. They also enquired about whether the Sellers or the lessor had obtained the consent of the mortgagee.16 (h) On 23 September 2021, the Sellers’ solicitors sent an email to the Buyer’s solicitors saying that enclosed was ‘the transfer documentation for each Premises’.17 It is not clear what documents were attached to the email – the enclosures are not included in the exhibit; (i) On the same day the Buyer’s solicitors acknowledged that, when the Form 1 transfers were received, they would be held for stamping purposes only, pending settlement.18 They said: ‘We will also provide you with a fully signed copy so that your client may obtain the mortgagee’s consent.’ They pressed for delivery of the Form 1 Transfers to their Springwood office as soon as possible.19 (j) On 27 September 2021, the Sellers’ solicitor emailed the Buyer’s solicitor requesting a scan of the transfer form so that the mortgagee can complete the Form 18 consent form. The email concludes: ’Noting that your client does not consent to an extension of time for settlement, kindly confirm what your client’s proposal is in the event that the mortgagee’s consent cannot be obtained prior to settlement given that this is a condition of the North Lakes Landlord consent.’20 This is the first hint that an extension may be required. (k) On 27 September 2021, the Buyer’s solicitors emailed the Sellers 16 Mr Castrisos’ first affidavit at 113. 17 Mr Castrisos’ first affidavit at 115. 18 It is unclear which email this is responding to. The email chain is not included in the exhibit. 19 Mr Castrisos’ first affidavit at 116. 20 Mr Castrisos’ first affidavit at 117. -- 8 of 30 -- 9 about the proposed stocktake and saying: ‘Our client will also be attending our office tomorrow morning to execute the Form 1 Transfers and each of the deeds of assignment. We will provide a signed copy of these documents to your office shortly thereafter.’21 (l) On 28 September 2021, the Sellers’ solicitor emailed saying: ‘We look forward to receipt of copies of the Form 1 Transfers and Deeds of Consent. We understand that all three deeds should now be acceptable to both parties.’22 (m) There must have been a discussion between the partners of the respective firms because, on 28 September 2021, Mr Ash Moore of the Buyer’s firm emailed Mr Castrisos of the Sellers’ firm (copied to both practitioners who had been corresponding) saying ‘Our client’s instructions are that the parties should continue to work hard to achieve settlement on or before 30 September 2021 as provided in the deed of settlement and respective contracts of sale.’23 (n) During the afternoon of 28 September 2021 the Sellers’ solicitors responded saying: ‘Both parties have been diligently working towards the agreed settlement date. We raise the request for an extension only out of practicality due to some outstanding items which the parties are aware of”. The items said to be outstanding are the signed Form 1 Transfers to be received from the Buyer’s solicitors ‘to allow for mortgagee’s consent to the North Lakes lease, which is a condition of the landlord’s consent. Noting the time, even if submitted tomorrow, it is not practicable that the mortgagee will process the consent in one day.’24 (o) Later that afternoon, on 28 September 2021, the Buyer’s solicitors emailed the Sellers’ solicitors attaching the Form 1 Transfers executed by the Buyer (which they note were only received late the 21 Mr Castrisos’ first affidavit at 118. There is no direct response to the concluding paragraph of the prior email. 22 Mr Castrisos’ first affidavit at 120. 23 Mr Castrisos’ first affidavit at 121. 24 Mr Castrisos’ first affidavit at 122. -- 9 of 30 -- 10 previous afternoon). They said that: i. they expect to be able to stamp the Form 1 Transfers on 29 September 2021; ii. they had taken all necessary steps to assist the Sellers in obtaining the mortgagee’s consent; and iii. their client has executed the deeds of assignment but the Sellers need to execute the assignments and provide the executed versions to the lessors.25 (p) On 29 September 2021, the Buyer’s solicitors emailed saying that the Buyer will require the mortgagee’s consent for completion to take place. They sa the Form 18 mortgagee’s consent is required so that the lease, upon assignment, will remain binding against the mortgagee in the event it takes possession.26 (q) On the same day, the Sellers’ solicitors emailed the Buyer’s solicitors attaching the ‘countersigned’ deeds of assignment/consent. They ask for the Buyer to confirm that the Buyer agrees to the deeds being submitted to the respective landlords.27 (r) That evening the Buyer’s solicitors responded saying the Buyer consented to the Sellers providing the executed deeds to the landlords. They asked to be provided with a fully signed copy of the deeds prior to completion the following day. They proposed the details for completion the next day, including the proposed exchange of cheques for the original signed Form 18 – Mortgagee’s consent.28 (s) At 10.35am, on 30 September 2021, the day fixed for settlement, the Sellers’ solicitors said they had copied the Buyer’s solicitors into an email to each lessor requesting confirmation of consent and providing the signed consent deeds for countersigning (by the lessors). They 25 Mr Castrisos’ first affidavit at 123. 26 Mr Castrisos’ first affidavit at 126. 27 Mr Castrisos’ first affidavit at 127. 28 Mr Castrisos’ first affidavit at 128. -- 10 of 30 -- 11 said: the original Form 18 consent from North Lakes mortgagee will not be available today. At best it may be the case that only a scan will be available with the original to follow by post from the mortgagee which can then be forwarded once received.29 (t) At 12.12pm, on the same day, the Buyer’s solicitors responded saying: ‘Our client requires the original form 18 consent in registrable form so that the lease, upon assignment, will remain binding against the mortgagee in the event it takes possession.’30 (u) Subsequently, at 1.03pm, the Sellers’ solicitors responded saying: The Form 18 Consent for North Lakes is no longer a condition required by the landlord for settlement purposes per their email this morning and note that the contract of sale is not subject to the consent being obtained. In any event, I have attached a copy of email from the mortgagee confirming that they are instructing Gadens to complete the consent request. I cannot see this being available today in any event .31 (v) Not surprisingly, at 1.31pm the Buyer’s solicitors responded saying: The provision of the mortgagee’s consent was a condition of the Lessor’s consent as detailed in their correspondence dated 7 September 2021. Additionally, pursuant to the terms of the lease (clause 16) the lessee is required to accept the lease subject to the terms of any consent by the mortgagee. The Buyer’s solicitors continued: Additionally, we note that the Form 18 consent is required to accompany the Form 1 transfers. If the form 18 Consent of Mortgagee is not lodged at this time, the mortgagee will not be bound by the lease and our client’s interest will not be recognised by the mortgagee if it proceeds to exercise its power of sale. For these reasons clause 24.3 of the sale contract has been inserted into the standard REIQ contract for sale to ensure that the Buyer’s interests are protected. As such, our client requires your client to obtain the Form 18 Consent of Mortgagee by the date of completion (as required by clause 24.3 of the sale contract).32 (w) At 1.58pm the Sellers’s solicitors made another attempt to convince 29 Mr Castrisos’ first affidavit at 132. 30 Mr Castrisos’ first affidavit at 133. 31 Mr Castrisos’ first affidavit at 134. 32 Mr Castrisos’ first affidavit at 135. -- 11 of 30 -- 12 the Buyers that the Form 18 Consent was not required: Regarding completion and the Form 18 Consent, respectfully that position is not correct. The Landlord’s representative has specifically confirmed that their requirements are met and the parties can proceed. Clause 16 of the lease is not applicable as the lease has already been consented to and there were no conditions imposed. Your client is accepting the lease on the same basis. We note that the Titles Office do not insist on the mortgagee’s consent being deposited for a transfer of a lease dealing. We appreciate the position that your client’s interests may not be protected in the event that the mortgagee exercises power of sale however, the parties have agreed in the contract of sale that the mortgagee’s consent is not required. [In fact, in clause 24.3 the parties agree the exact opposite.] Accordingly the consent provisions within the contract do not operate. Accordingly it is not accepted that the Form 18 consent is required for settlement purposes. Our client will be tendering for settlement as anticipated and will consider your client in default if they delay settlement on the basis of the Form 18 consent not being present.33 (x) At 3.27pm, with completion set for 5pm, the Buyer’s solicitors responded: As previously noted in our correspondence to your office, our client requires the mortgagee’s consent to be obtained by the date of completion. Contrary to your email below, clause 24.3 of the sale contract provides that the contract is conditional upon the lessor and any mortgagee consenting to the assignment of the lease of the premises from the Seller to the Buyer…Your clients have been aware of this requirement since the contracts were signed, as acknowledged in your emails of …It is essential that our client obtains full and unfettered interest in the premises…34 (y) At 3.51pm, the Sellers’ solicitors responded saying: Standard Condition 24.3 operatively follows on from condition 24.2 which only indicates the mortgagee’s consent is required when it is applicable. The parties in the documents have agreed that the mortgagee’s consent is not applicable. Accordingly Standard Condition 24.3 does not apply to the extent that it refers to 33 Mr Castrisos’ first affidavit at 136. 34 Mr Castrisos’ first affidavit at 137. -- 12 of 30 -- 13 mortgagee’s consent.35 [17] At 5pm, the designated time for completion, the sales of the business did not complete. Each party alleged that the other was in breach and that they were ready willing and able to complete.36 It will be necessary to return to those arguments. What Happened with the Consents? [18] None of the lessors’ consents to the assignments were obtained by the date for completion.37 For the North Lakes Contract, the mortgagee also failed to supply its consent on or before the time fixed for completion. Browns Plains Contracts [19] For the Brown’s Plains contract, at 9.28am, on 30 September 2021, the solicitors for the lessor emailed the Sellers’ solicitors (copied to the Buyer’s solicitors) saying that: We advise our client consents to the assignment occurring today. We will contact them to arrange for the sole director to execute the deed as a matter of priority. Would you please provide a copy of the transfer in due course, along with any general consent you require our client to sign.38 [20] That email indicates that the lessor contemplated that the parties would not be bound until the formal document was executed. That is why the firm were arranging for the sole director to execute the document as a matter of priority. If there was an intention to be immediately bound there would be no need for execution as a matter of priority. It is also notable that the lessor’s solicitors use prospective language (For example, ‘We will contact them…’). On the other hand, there is no language which suggests that the lessor is to be bound before execution of the deed. The lessor’s solicitors do not, for example, invite the Sellers’ solicitors to act on their email, nor do they suggest that their client’s execution of the deed is a mere formality. The first sentence does not 35 Mr Castrisos’ first affidavit at 138. 36 Mr Castrisos’ first affidavit at 161 and 162. 37 The mechanism for the consent of the lessors was, in each case, the lessor’s execution of a deed for each of the properties. 38 Mr Castrisos’ first affidavit at 140. -- 13 of 30 -- 14 assist the argument that the parties intended to be bound immediately. That sentence is merely about the timing, and is qualified by the following sentence which attaches importance to the lessor’s execution of the deed. [21] Those factors make clear that the intention is that the lessor will be bound once the deed is executed.39 [22] That conclusion, that the parties were not immediately bound, is reinforced by cases such as Marek v Australasian Conference Association40 where it was held that: (a) The usual expectation of parties for the sale of land was that they would not be taken to have made a concluded bargain unless and until a formal contract was concluded; and (b) Where solicitors are to assist in the preparation of a contract for the sale of real estate, that factor tends to make it less likely that the parties desire to be formally committed before the contract’s execution.41 [23] It is true that this transaction involved the assignment of leasehold interests in land. However, there is no substantive reason for differentiating. As counsel for the Buyer points out a lease can only be assigned in writing.42 It is notable that the parties themselves prepared deeds of assignment. Contrary to the submissions of counsel for the Sellers, the deeds recorded not merely the consent of the lessors but also the assignment of the lease by the Sellers to the Buyer.43 That means that the parties obviously must have contemplated that the three parties would not be bound until their agreement was recorded in an instrument to which all parties were bound.44 As in 400 George Street (Qld) 39 Subject to the deed being ‘delivered’: see 400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302 and NTT Australia Digital Pty Ltd v Cover Genius Services Pty Ltd [2020] NSWSC 1378. 40 [1994] 2 Qd R 521. That case followed and approved SJ Mackie Pty Ltd v Dalziell Medical Practice Pty Ltd [1989] 2 Qd R 87 at 92-93. Marek v Australasian Conference Association was followed and applied in 400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302 at [55]. See also the discussion of the third category in Masters v Cameron (supra) in Carter ‘Contract Law in Australia’ 7 th ed at [5.05]. 41 [1994] 2 Qd R 521 at 527-528. 42 Property Law Act 1974 (Qld) ss 11 and 12. 43 See, for example, clause 5 of the Browns Plains lease: Mr Castrisos’ first affidavit at 145. 44 The Buyer, for example, would not wish to be bound if the lessor refused to also be bound. -- 14 of 30 -- 15 Pty Ltd v BG International Ltd: ‘The basis on which the parties dealt was that no legal obligations would arise under any instruments executed by them until all were bound.’ 45 [24] As it happens, the deed was not executed by the lessor until a week after the completion date. On 6 October 2021, the solicitors for the lessor emailed the Sellers’ solicitors saying that their client had now signed the deed of assignment of lease and consent of the lessor.46 They enclosed a copy. North Lakes Contract [25] For the North Lakes contract, at 11.45am, on 30 September 2021, the solicitors for the lessor emailed the Buyer’s solicitors (copied to the Seller’s solicitors) saying that: I refer to your email of 28 September 2021 and confirm your calculation of the bond amount appears to be correct. If your client does not become the lessee pursuant to the assignment of lease our client will refund the amount paid to our trust account for bond. I confirm that all requirements appear to have been met and the matter is able to proceed. I will provide a copy of the deed of consent signed by our client as soon as it is returned to us by our client .47 [26] Again, the evident intention of the parties is that they will be bound once the formal document is signed. That is clear from the second sentence which is an express acknowledgment that the parties are not yet bound, and that the deal may fall at the final hurdle. Thus, the lessors give the Buyer an assurance that, if the deal does not proceed the bond they have paid will be refunded. Certainly, there is a recognition that the lessor may decide not to sign. In that event the parties would not be bound and the bond would be refunded. Note also that, again, the lessor’s solicitors use prospective language (‘…the matter is able to proceed. I will provide a copy of the deed…’). [27] On 1 October 2021, that is, after the completion date, the solicitors for the lessors of the North Lakes premises emailed the Sellers’ solicitors saying that: 45 [2012] 2 Qd R 302 at [57]. 46 Mr Castrisos’ first affidavit at 141. 47 Mr Castrisos’ first affidavit at 153. -- 15 of 30 -- 16 ‘We are instructed that our client has signed the deed of lessors (sic) consent and we will provide a signed copy as soon as possible’.48 Of course, by that time it was too late. [28] The North Lakes shop was subject to a mortgage. And so, the mortgagee’s consent was required.49 At 12.36pm, on the day of completion, the Sellers’ solicitors emailed the mortgagee’s office asking for execution of the Form 18 consent on an urgent basis.50 An almost immediate response was received saying that: ‘I will instruct Gadens to execute and process the transmission application. Will let you know when done.’51 There was nothing immediately binding in that response. The decision to have the mortgagee’s solicitors attend to the processing and execution of the consent, still meant that the solicitors’ requirements were to be met, and that there was to be an ‘execution’ of a document – at which point the parties would be bound. [29] The next day, on 1 October 2021, the mortgagee’s solicitors emailed saying that they were instructed to consent to the transfer of the lease. They said that the relevant Form 18 consent would be made available (presumably in an executed form) on the receipt of certain fees. [30] Thus, the mortgagee’s consent was not obtained by the time for completion. Beenleigh Contract [31] At 11.20am, on the day of completion, 30 September 2021, the solicitors for the lessor of the Beenleigh premises emailed the Sellers’ solicitors saying that all assignment conditions had now been satisfied and that they will proceed to obtaining their client’s execution of the deed.52 Thus, again, the parties anticipated that they would be bound on the execution of a formal document. [32] And so, the evidence is that none of the lessors’ consents were obtained by the date for completion. The North Lakes mortgagee consent was also not obtained by 30 September 2021. 48 Mr Castrisos’ first affidavit at 157. 49 See the earlier discussion at [14]. 50 Mr Castrisos’ first affidavit at 154. 51 Mr Castrisos’ first affidavit at 155. 52 Mr Castrisos’ first affidavit at 159. -- 16 of 30 -- 17 [33] It is true that in each case, the consents were ‘in the pipeline’ in the sense that none of the three lessors signalled an objection to the assignment. However, that is some distance from a legally binding consent. The Settlement Fails [34] The Buyers contend that at settlement they tendered three bank cheques. That appears to be common ground. The Sellers’ solicitors complain that ‘Mr Moore refused to let our client handle them in exchange, only allowing for photos to be taken and then proceeded to mention that items were missing.’53 However, the cheques are not said to be in the wrong amounts. And, the Buyer had no obligation to hand over the cheques unless the Sellers proffered, in exchange for the cheques, a transfer of the Sellers’ interests in the leases, properly signed, and (subject to being stamped) capable of immediate registration with the Titles Office. [35] The Buyer’s solicitor says that no representative of the Sellers made available or offered to exchange evidence that each Seller had assigned the leases, or consents from the lessors, or the keys or codes for access to the premises.54 He says that he could not see any keys. After a short conversation with the Buyers’ solicitor, the Sellers’ representatives left. [36] The Sellers’ version of what happened is a little different. Mr Narsey, for the North Lakes sellers, says he had with him in the settlement room two smoke signs, and the keys for the three shops, the original PPSR releases for each business and a tax invoice for the stock of the business. He says that Mr Moore showed the three bank cheques and permitted photographs to be taken of them. He says that he then called the Sellers’ solicitors from the conference room. During the subsequent conference call between the two sets of solicitors, Mr Moore said that the parties had sighted the bank cheques and were satisfied with them. 53 Mr Castrisos’ second affidavit at [9]. It appears that the solicitor was not there. Presumably he was told this. 54 Mr Moore’s first affidavit at [8(d)]. -- 17 of 30 -- 18 [37] Mr Narsey says that Mr Moore called for the following documents and Mr Castle, the Sellers’ solicitor, gave the following responses (to the extent that it is relevant): (a) In respect of the Form 18 mortgagee’s consent for North Lakes – Mr Castle said that: i. the requirement to procure this had been waived by the lessor’s solicitor; ii. the contract did not require that consent as between the parties to the contract; and iii. the consent had been given to Gadens to document – even though it was not required for handover purposes; (b) the deeds of assignment by the lessors were not at settlement – Mr Castle advised that each solicitor for the respective lessors had confirmed consent and indicated that the deeds would be signed and returned in due course; (c) shop signage was not provided; (d) smoke signage was not provided.55 [38] Thus, there is no suggestion that the documents that were called for were provided. There were then discussions between the solicitors but the settlement did not proceed. Termination [39] That same evening, at 6.25pm, the solicitors for the Sellers emailed the Buyer’s solicitors saying that: (a) The solicitors for the lessors had confirmed consent and indicated that the deeds would be signed and returned in due course; (b) The Buyer’s solicitors had not raised the requirement of lessor’s 55 Mr Narsey’s affidavit at [14]. -- 18 of 30 -- 19 signed consents prior to settlement; (c) The need for a Form 18 consent from the mortgagee of the North Lakes property had been waived by the relevant lessor’s solicitor and the contract did not require consent as between the Buyer and the Sellers; (d) The mortgagee’s consent had been given to Gadens solicitors; (e) The signage to the business had not been handed over; (f) The Sellers now hold the Buyer to be in default under each of the contracts and they reserved their clients’ rights. [40] The Buyer’s solicitors emailed the Sellers’ solicitors, at 7.10pm, that evening. They stated: (a) The Buyer tendered three bank cheques and the Sellers confirmed they were satisfied with those cheques; (b) The Buyer called for but the Sellers failed to tender deeds of assignment that were signed by all parties to the deed (incl. the lessors), the consent of the North Lakes’ mortgagee, and certain business assets (incl. signage); and (c) The Sellers were in breach of the contracts. [41] By a letter dated 1 October 2021, the Buyer repeated the allegations of breach by the Sellers, added a further breach that the keys and access codes were not available, and elected to terminate each of the three contracts. By an email that same day, the Sellers’ solicitors disputed the alleged breaches and affirmed each of the contracts and called on the Buyer to complete the contracts on 5 October 2021. [42] That invitation was not accepted. On 6 October 2021 the Sellers brought this proceeding seeking specific performance of all three contracts. -- 19 of 30 -- 20 Objections to Evidence [43] Counsel for the Buyer made a number of objections to evidence which are recorded in a document entitled ‘Respondent’s Objections’. The first objection in that document was to the tender of the three contracts for the sale of the three businesses.56 That objection was on the basis that the contracts were not properly stamped and so cannot be received in evidence in a legal proceeding, other than a criminal proceeding.57 That objection was withdrawn during submissions because the three contracts are properly stamped.58 [44] Of the 15 remaining objections, it is necessary to deal with only four. That is because, in the chronology above, I have referred to and relied on the relevant exhibits to which objection is taken. [45] On the grounds of “hearsay as to the truth of its contents”, the Buyer objects to the court receiving into evidence four emails as follows: Page of exhibits to Mr Castrisos’ first affidavit Paragraph referred to above Description of the document 140 [19] Email from the solicitors for the Browns Plains lessors to the Sellers’ solicitors on 30 September 2021 at 9.28am 153 [25] Email from the solicitors for the North Lakes lessors to the Sellers’ solicitors on 30 September 2021 at 11.45am 159 [31] Email from the solicitors for the Beenleigh lessors to the Sellers’ solicitors on 30 September 2021 at 11.20am 161 [17] Email from the Sellers’ solicitors to the 56 See Mr Castrisos’ first affidavit at [3] and exhibits CC-2, CC-3 and CC-4. 57 Duties Act 2001 (Qld) s 487. 58 See Transcript T1-5 line 41 to T1-6 line 41. -- 20 of 30 -- 21 Buyer’s solicitors on 30 September 2021 at 6.25pm [46] These are surprising objections. The first three emails are emails from the lessors’ solicitors to the Sellers’ solicitors. The fourth email is an email between the solicitors for the parties on the day of settlement. Correspondence of that type routinely finds its way into evidence before the court in civil disputes such as this. [47] The email from the North Lakes lessor is a useful example of the correspondence: I refer to your email of 28 September 2021 and confirm your calculation of the bond amount appears to be correct. If your client does not become the lessee pursuant to the assignment of lease our client will refund the amount paid to our trust account for bond. I confirm that all requirements appear to have been met and the matter is able to proceed. I will provide a copy of the deed of consent signed by our client as soon as it is returned to us by our client.59 [48] None of that is tendered as evidence of any particular fact. [49] The rule against hearsay applies where the object of the evidence is to establish the truth of what is contained in a statement by a person who is not a witness. The contents of this email are not tendered for the purpose of proving the truth of any statement in the email. It is tendered to prove the terms of what was said, because the terms of what was said are facts in issue.60 The Sellers here seek to prove that they had obtained the consent of the lessors. [50] The distinction is explained in Cross on Evidence: In several classes of case the question before the court is whether certain words were spoken or written, not whether they were true or false. Obvious instances are provided by actions for defamation and intimidation .61 59 Mr Castrisos’ first affidavit at 153. 60 See the discussion in Heydon, Cross on Evidence at [31010] and in more detail at [31085]-[31090]. 61 Heydon, Cross on Evidence (loose-leaf edition) at [31085]. -- 21 of 30 -- 22 [51] The concluding examples cited in that text are: …Similarly, proof that a doctor consented to a patient having a breath test is not hearsay: the relevant matter in issue was whether he made any objection. Another example is whether consent has been given: the oral consent of A can be proved by B.62 [52] In the Browns Plains lessor’s email, to use that as another example, the lessor’s solicitors say: We advise our client consents to the assignment occurring today. We will contact them to arrange for the sole director to execute the deed as a matter of priority. Would you please provide a copy of the transfer in due course, along with any general consent you require our client to sign.63 [53] The first sentence is tendered as evidence of what was being communicated by that lessor through its solicitors. The second and third sentences do not contain any statement of fact. They are merely statements of intention and as request. The other emails are admissible for the same reasons. [54] Consequently, the objections are not made out and the court is entitled to consider the four emails as part of the evidence. The Rights under the Three Relevant Clauses [55] Four points needs to be made clear about the parties’ rights under the contracts of sale. The first is that, as explained above,64 the concurrent and interdependent promises which required an exchange (i.e. simultaneous acts to be performed interchangeably) were: (a) the Buyer’s obligation to pay the balance of the purchase price; and (b) the Sellers’ obligation to provide a transfer of the Sellers’ interests in the leases, properly signed, and (subject to being stamped) capable of immediate registration. [56] The other items required by the Buyer were not within clause 6.1 and were not therefore part of any ‘exchange’ required by the contract. 62 Ibid. 63 Mr Castrisos’ first affidavit at 140. 64 See paragraph [7] above. -- 22 of 30 -- 23 [57] That said, the second point is that the Sellers’ obligations under clause 24.2 to assign the leases, and to obtain the consent of the lessors and any mortgagee, was an obligation that the Sellers were required to perform on or before the date of completion. Importantly, the assignments and consents that the Sellers were required to obtain under clause 24.2 were assignments and consents that they had an independent obligation to obtain, irrespective of any exchange. They were required to obtain those consents at any time up to and including the day of completion. [58] However, as a matter of convenience, a party might attend settlement with documents which are the subject of independent obligations as well as documents the subject of concurrent and interdependent promises. In this case, where the completion was fixed for 5pm, on 30 September 2021, one can well understand that the Buyer would expect to receive at settlement the transfers required to be exchanged by clause 6.1, as well as the assignments and consents the subject of independent obligations under clause 24.2. [59] Both parties seemed to be confused about those obligations. The Buyer seemed to regard all of the obligations of the Sellers as part of the concurrent and interdependent promises in the contract and therefore subject to an ‘exchange’. On the other hand, the Sellers seemed to regard the obligation to obtain a transfer, assignment or consent as merely an obligation to obtain a positive indication that the document was going to be signed or was ‘on its way’ rather than an obligation to actually obtain the document. [60] The third point is that clause 24.3 contained a condition subsequent. The contract was conditional upon each of the lessors, and any mortgagee, giving their consent to the assignment of the leases from the Sellers to the Buyer. In the event that those conditions were not met, the Buyer was entitled to give a written notice of termination. [61] The fourth point is that clauses 6.1, 24.2 and 24.3 certainly overlap to some extent. The content of the documents required is similar. However, the purpose of each clause is distinctive. Clause 6.1 specifies what is required to be exchanged. Clause 24.2 imposes on the Sellers an obligation to supply the assignments and the consents, and to do so by 30 September 2021. On the -- 23 of 30 -- 24 other hand, clause 24.3 gives the Buyer the right to terminate if the lessors and any mortgagee have not given their consent by 30 September 2021. The Arguments – Lessors’ Consents [62] Counsel for the Sellers argues that clause 24 was complied with: 12. Before completion the applicants had complied with the requirements of the Deed and clauses 24.2 and 24.4 (sic65) of the Contracts as: (a) they had (as had the respondent) executed deeds of assignment of the three leases in terms approved by each of the landlords; (b) obtained the consents of the lessors; and (c) paid the costs of the lessors, including the costs of the deed of covenant. [63] However, that submission is qualified by what follows in the next paragraph of his submissions: 13. The deeds of covenant had not been signed by each of the lessors but, consistent with the consents referred to in 12(b) above, the lessors’ solicitors had confirmed they would be executed and returned in due course. Consistent with that indication signed copies have since been received from each lessor. [64] Then, presumably on the basis that the best form of defence is attack, counsel for the Sellers submitted: 14. The lack of bona fides of this ground is highlighted by (the) fact that the respondent’s solicitors Settlement Statements did not require the signed landlord’s consent to the assignments of the leases to be available or exchanged at settlement. [65] First, as has been explained, none of the three lessors had executed deeds of assignment on or before the date for completion (i.e. 30 September 2021). [66] Second, the lessors’ solicitors had not confirmed that the deeds would be executed. In fact, in the case of the Browns Plains contract, the lessor’s solicitors said they would contact their client to arrange for the sole director 65 Presumably this is intended to be a reference to clause 24.3. Clause 24.4 really deals with the machinery of who is to apply for consents and requires co-operation and best endeavours. -- 24 of 30 -- 25 to execute the deed as a matter of priority. That is not a commitment by the solicitors that their client was bound until the deed was executed. Similarly, for the North Lakes contract the solicitors’ commitment was merely to provide a copy of the deed ‘signed by our client as soon as it is returned to us by our client’. For the Beenleigh contract, the commitment was merely that they will proceed to obtaining their client’s execution of the deed. [67] Third, it is true that the requirement of the lessor is not reflected in the settlement statements, although the North Lakes settlement statement did require ‘Form 18 – Mortgagee’s Consent (original)’. However, what is stated as ‘Settlement Items’ can hardly be regarded as overriding the Sellers’ contractual obligation to obtain the lessors’ consent by the day fixed for completion. In any event, it is plain from the correspondence (summarised above) that from the outset, the Buyer was insisting on receipt of the lessors’ consents. [68] It follows that the Sellers had not obtained the consents by the date for completion. [69] Counsel for the Buyer referred to clause 34.1 of each contract. In each case clause 34.1 provides: A notice, consent or other communication under this Contract is only effective if it is: (a) in writing, signed for or on behalf of the person giving it; (b) addressed to the person to whom it is given; and… [70] Thus, the parties to the contracts agree that ‘consents’ are only effective if those consents are in writing and signed by the person giving the consent. That is an additional reason why the consents cannot be regarded as having been given on or before the date for completion. [71] Counsel for the Buyer also argues that there is no evidence that the solicitors for the three lessors, in sending their emails on 30 September 2021, had authority to bind each of the lessors. There is force in that submission. In an analogous context, in 400 George Street (Qld) Pty Ltd v BG International -- 25 of 30 -- 26 Ltd,66 Muir JA relied on the absence of evidence that the solicitors for the appellants had authority to contract on the appellants’ behalf. That would apply here. There is no evidence that the lessors’ solicitors had authority to give consent on behalf of the respective lessors. [72] For completeness, I mention that neither party argued the issue of whether and when, in each case, the deeds had been ‘delivered’ and therefore became binding.67 The Arguments – Mortgagee’s Consent [73] The chronology above68 demonstrates that the North Lakes mortgagee did not consent on, or before, the date of completion. In fact, it appears that the mortgagee’s consent was only requested on the day of completion. The response of the mortgagee was that they will instruct their solicitors, Gadens, to execute and process the transmission application. Whilst it is an encouraging response, there was nothing immediately binding in that response. [74] It follows that the North Lakes Seller failed to comply with clause 24.2. And, for the same reason, the condition in clause 24.3 failed. [75] Counsel for the Sellers argues that the deed and the North Lakes contract did not require the signed mortgagee’s consent to be available at settlement. It is true that the contract did not expressly require the mortgagee’s consent, or any of the consents, to be available at settlement. Clause 24.2 did, however, require that the Seller obtain the mortgagee’s consent by the day of completion. As explained above,69 clause 24.2 contains an independent promise by the Seller to obtain the consent of any mortgagee on or before the date of completion. Given that settlement was fixed for 5pm, that is, close of business on 30 September 2021, it is understandable the Buyer insisted on the mortgagee’s consent being available at settlement. 66 400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302 at [54]. 67 See 400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302 and NTT Australia Digital Pty Ltd v Cover Genius Services Pty Ltd [2020] NSWSC 1378. 68 See paragraph [28] above. 69 See paragraph [10] above. -- 26 of 30 -- 27 [76] That said the breach occurred when, by the end of 30 September 2021, no consent had been obtained. [77] Counsel for the Sellers also argues that item S of the Items Schedule to the North Lakes contract provided that the consent of the mortgagee was not required. The difficulty arises because clause 24.2 and 24.3 require the mortgagee’s consent. However, in item S the particulars of the existing lease are set out (e.g. lessor’s details, term, rent etc.). At the end of Item S is this question: ‘(o) The consent of the mortgagee of the premises to the assignment of the lease’. There are then two possible answers to that question: □ is required ■ is not required [78] In the way marked above, the second square for the second alternative has been filled in. However, note 14, which is adjacent, instructs the users of this REIQ business contract to ‘Cross out that which does not apply and initial’. No initials appear. No crossing out appears. Instead, the second box has been filled in. That could be an intention to cross out the non-applicable alternative or it may be intended as a ‘tick’ to the applicable alternative. At least one problem may be that the form has been filled in electronically but the form itself, and the notes to the form, assume the use of a pen and ink. [79] Thus, the problem is that the form may signify that the consent of the mortgagee is not required, or that the consent is required. Given that ambiguity is in the standard conditions, I prefer the relatively clear words of clause 24.2 and 24.3, which both require a mortgagee’s consent where there is a mortgage. This interpretation is more consistent with the objects of the contract which are designed to give the Buyer the same registered leasehold interest as was held by the Seller, and to ensure that the Buyer did not acquire a leasehold interest that was susceptible to defeat by the mortgagee. [80] Counsel for the Sellers argues that the requirement that the Sellers’ obtain the mortgagee’s consent had been waived. That argument is said to be based on two emails: -- 27 of 30 -- 28 (a) an email from the lessor’s solicitors to the Buyer’s solicitors (copied to the Sellers’ solicitors) at 11.45am on 30 September 2021;70 (b) a further email from the lessor’s solicitors to the Buyer’s solicitors (copied to the Sellers’ solicitors) at 2.45pm on 30 September 2021. [81] The first problem with the submission is that clause 24.2 imposes an obligation on the Sellers to obtain the mortgagee’s consent. That clause is plainly for the benefit of the Buyer who, having obtained the mortgagee’s consent, would then be able to register the assignment and take a leasehold interest which it could assert against the landlord and its mortgagee. It makes no sense to say that by one or two emails the mortgagee’s have waived the requirement for consent of the mortgagee. Thus, the Buyer was the only party capable of waiving the requirement in the contract for the consent of the mortgagee. [82] Second, there is no suggestion that the Buyer did waive the requirement. Quite the contrary. As the chronology outlined above shows, 71 the Buyer’s solicitors insisted on obtaining the lessors’ consent and the mortgagee’s consent. [83] Third, in any event, the two emails relied on do not constitute a waiver by the mortgagee. In the first email the mortgagee’s solicitors merely say that its client’s requirements for consent have been met and that ‘the matter is able to proceed’. In its context, that means that the payment of the bond and the other requirements have been met and that the consent can now be signed or executed. [84] The second email is in these terms: The bond is 3 months plus GST which is $6,637.26. There is a further amount due of $603.39. As to mortgagees (sic) consent, in our experience this is generally 70 See paragraph [25] above. 71 See paragraph [16] above. -- 28 of 30 -- 29 obtained following completion due to time constraints. We suggest the assignor pay the amount of $500 to our trust account pending finalisation of the consent which is the consent registration fee and anticipated mortgagee costs of $300. [85] It is true that the second sentence suggests that the experience of the mortgagee’s solicitor was that the mortgagee’s consent is generally obtained after completion of the contract. However, the comment does not go any further than that. There are certainly no words to the effect that the mortgagee waives any need for its consent. In fact, the words of the last sentence are to the contrary. The mortgagee’s solicitor uses the phrase ‘pending finalisation of the consent’ which make clear that the obtaining of the consent has not yet occurred. Further Controversies [86] There are two further categories of controversy. One concerns whether the Sellers supplied business signage in accordance with the contract. The second concerns whether the keys and access codes were available at settlement. These are factual questions that are difficult to resolve without direct evidence and cross-examination. [87] However, given the conclusions reached above, it is unnecessary to embark on a process of deciding those two categories of issues. Conclusions [88] Nevertheless, it follows from the reasoning explained above that: (a) In the case of all three contracts, contrary to clause 24.2 in each contract, the Sellers failed to obtain the consent of the lessors to the assignments on or before the date for completion (30 September 2021); (b) In the case of the North Lakes contract, contrary to clause 24.2 of that contract, the Seller under that contract failed to obtain the consent of the mortgagee to the assignment on or before the date for completion; -- 29 of 30 -- 30 (c) In any event, pursuant to clause 24.3 of the North Lakes contract, the Buyer was entitled to terminate that contract because of the non- fulfilment of the condition requiring the consent of the lessors and the North Lakes mortgagee; (d) The settlement of all three contracts was dependent on the other contracts settling and so the conclusions in (b) and (c) above mean that the Buyer was entitled to terminate the Browns Plains and Beenleigh contracts. [89] Thus, the Buyer’s termination of each contract was valid and the Sellers’ application for specific performance should be refused. -- 30 of 30 --