Summary

Principles of waiver and estoppel applied to an invalid notice to complete.

Facts

The defendant vendor appealed against the decision of Master Winegarten striking out its defence and counterclaim to a claim by the purchasers for specific performance and ordering performance by the vendor of a contract for the sale of the property. The vendor's defence was that the contract was no longer in force as it had rescinded the contract because of an earlier failure by the purchasers to comply with a notice to complete. The purchasers' position was that the notice to complete was not in accordance with the contract and was invalid. They contended that the contract provided that, before a notice to complete could be served, a condition relating to the provision of a replacement land certificate (the original land certificate having been mislaid) had to be satisfied. As the condition was not satisfied the notice to complete was invalid and the vendor's recission of the contract was ineffective. The Master agreed with the purchasers and held that the contract was still in force. The vendor had no defence to the purchasers' claim. The contract for sale incorporated the National Conditions of Sale.

Held

(1) The judge did not disagree with the reasoning of the purchasers and the Master in relation to the contract. The condition had not been satisfied and therefore the completion date as defined in the contract had never arrived. Therefore under the National Conditions of Sale a notice to complete could not yet be served. The purported notice to complete was ineffective. (2) However, that reasoning failed to give effect to principles of waiver or estoppel. The principles in Bremer v Vanden (1978) 2 Lloyd's Rep 109, The Wise (1989) 2 Lloyd's Rep 450 and Free Grammar School of John Lyon v Mayhew (1997) 1 EGLR 88 meant that, although as a matter of contract the vendor was not entitled to serve a notice to complete when it did, the purchaser waived that particular contractual formality. Notices to complete flowed from contractual terms and the terms remained contractual terms even though they were found in identical form in nearly all contracts for the purchase and sale of a property. The standard provisions about notices to complete were just as subject to the law about waiver and estoppel as any other contractual provisions. The objection which the purchasers were taking now could and would have been cured in a few days if it had been taken at the time.

Appeal allowed.