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Dunlop and ors v Pope and ors [2006] NZCA 129 (15 June 2006)

Last Updated: 22 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA42/05

BETWEEN ROSS JAMES CRAUFURD DUNLOP, JAN MARGARET DUNLOP, MURRAY GORDON GIBSON, GABRIELLE ANN GIBSON, MICHAEL MACDOUGALL MOWBRAY AND HELEN MOWBRAY
Appellants

AND CHARLES JONATHAN POPE, JACQUELINE KAYE POPE, LORRAINE AGNES WELCH AND JOHN WISHART WELCH
Respondents

Hearing: 7 June 2006

Court: William Young P, Glazebrook and Hammond JJ

Counsel: C S Withnall QC and D S McGill for Appellants
J M Morrison for Respondents

Judgment: 15 June 2006

JUDGMENT OF THE COURT

A The appeals are allowed.

B We order that the two caveats the subject of this appeal do lapse.

C The appellants will have costs of $6,000 and usual disbursements against the respondents, jointly and severally.

REASONS
(Given by Hammond J)

Table of Contents

Para No
Introduction [1]
Background [4]
The Welch agreement
Further facts [14]
The High Court determination [23]
The argument in this Court [25]
Disposition [28]
The Pope agreement
Further facts [36]
The High Court determination [49]
Disposition [51]
Conclusion [52]

Introduction

[1] We have before us two appeals, which are being heard together as a matter of convenience, in related vendor and purchaser disputes.
[2] The issue for determination is whether each of the respondents have caveatable interests with respect to separate agreements for sale and purchase entered into by them with the appellants.
[3] Associate Judge Gendall held (HC WN CIV-2004-485-2398; HC WN CIV-2004-485-2399 18 February 2005) that the respondents arguably have caveatable interests. He ordered that caveats lodged by them do not lapse. The vendors now appeal to this Court against those determinations.

Background

[4] The respondents are the owners and developers of a subdivision at Hahei, on the Coromandel Peninsula. The respondents proposed to subdivide their land, retaining two sites for holiday homes for themselves, and to sell the remaining sections.
[5] The proposed subdivision overlooks Cathedral Cove, which is a highly regarded, and much visited, geographical feature at one end of Hahei Beach.
[6] On 13 March 2001 Mr and Mrs Welch signed an agreement to purchase lot 4 in the proposed subdivision for $225,000.
[7] On 24 January 2002 Mr and Mrs Pope signed an agreement to purchase lot 6 in the proposed subdivision for $220,000.
[8] At the time each of these contracts was entered into, the titles to the sections being purchased were not available. The individual contracts contemplated that the appellants would take steps to complete the subdivision. Final settlement of each sale was to take place when the title was available.
[9] The issue of the titles was in fact much delayed. Titles to these parcels of land did not become available until 20 September 2004. That was some 42 months after the Welch contract, and 32 months after the Pope contract.
[10] Before the titles became available, the vendors purported to exercise rights of cancellation under both contracts. They relied amongst other things on the delay in the issue of the respective titles. The purchasers did not accept those cancellations. It was in those circumstances that the caveats in issue before us were lodged.
[11] It appears to be common ground that both Mr and Mrs Welch and Mr and Mrs Pope have, as purchasers, at all material times been ready, willing and able to complete their respective purchases. There is no allegation of any breach of obligation against them.
[12] Mr Withnall QC’s interests contemplate that the applications to sustain the caveats will be dispositive of the litigation between the parties. Mr Morrison said that, in practical terms, that will likely be so. We do however note with some dismay that the underlying litigation was not pursued promptly; the merit case itself could have been disposed of by now.
[13] Each of the agreements is a stand-alone transaction. Different periods of delay apply to each. We will take each agreement in turn.

The Welch agreement

Further facts

[14] This agreement is in the standard form approved by the REINZ and the Auckland District Law Society (Seventh Edition (2) July 1999).
[15] Clause 14.0 (a special condition) states:

14.0 Settlement shall be 60 (sixty) working days after the vendor’s solicitor has given the purchaser’s solicitor notice in writing that the titles are available. If such notice has not been given within 12 months of the date hereon, then the purchaser has the right to cancel this agreement.

[16] Someone has handwritten the words "or vendor" immediately below and slightly to the right of the word "purchaser" in the last line of this clause. As the Associate Judge said, "This alteration appears to bear the initial of one party only. Although it is somewhat unclear, this initial seems to include the letters ‘RD’ which may relate to the first-named [appellant] Mr Ross Dunlop."
[17] The only evidence as to how this addition came about appears in the affidavit of Mr J W Welch dated 10 November 2004. At paragraph 5 he said, "Although it appears someone has handwritten ‘or vendor’ after ‘purchasers’ that was not an alteration or accepted by us."
[18] The barely legible copy of the agreement for sale and purchase exhibited to that affidavit has clearly been faxed backwards and forwards between Richardsons Real Estate in Hahei and "L & J Welch", but no explanation is given in the affidavit, nor was one found by the Associate Judge, as to what those various transmissions relate to.
[19] There were undoubtedly delays in the issue of separate title to this section. Mr and Mrs Welch’s solicitors made an enquiry of the vendors’ solicitors in January of 2003. They were advised that "recent delays have been caused by negotiations in relation to an easement to enable power to be led to the site. We believe that that matter is now settled and that we would expect the plan to be deposited within the next two months." It will be noted that there is no suggestion in that letter that there was no agreement between the parties.
[20] On 21 October 2003 however, the vendors’ solicitors wrote to the (by then) purchasers’ solicitors in these terms:

Re: Dunlop, Gibson & Mowbray to Welch Medical Trust - 86 Grange Road, Hahei

We refer to the Agreement between our respective clients entered into in February 2001. As you will be aware our clients have been unable, to date, to provide separate title to the property your clients propose purchasing. Our clients have to date used their best endeavours to obtain the issue of a separate title.
Our clients, having taken advice from Senior Counsel, and having satisfied their contractual obligations with respect to satisfying the conditions in the Agreement have been unable to do so. Having been unable to satisfy the conditions in clause 14 of the contract within the time provided, the contract is accordingly at an end.

[21] Mr and Mrs Welch’s (now) solicitors replied on 18 November 2003, as follows:

RE DUNLOP, GIBSON & MOYBRAY TO WELCH MEDICAL TRUST - LOT 4, 86 GRANGE ROAD, HAHEI

We have been instructed to act for the Welch Medical Trust in connection with the above transaction.
We refer to your 21 October 2003 letter to N.J.H. Smith & Co. Our clients understand that the issue of the new titles is imminent and accordingly believe that your clients’ purported cancellation of the contract has nothing to do with their inability to provide separate title yet. Rather it would appear that they are endeavouring to take advantage of the increase in land values that has occurred since the purchase was negotiated in 2001. Plainly your clients are seeking to take advantage of delays brought about by themselves.
Our client
1. Does not accept that your clients are entitled to cancel.

2. Are registering a caveat but will consent to the registration of any documents still required for the new titles to issue. (Emphasis added.)

[22] That response produced a relatively lengthy reply of some three and a half A4 pages from the vendors’ solicitors, on 10 December 2003. We summarise that letter as follows. It is made plain that the advice of senior counsel had been taken. The letter asserts a right to cancel "under clause 14 of the sale and purchase agreement". It then goes on to recite at some length all the problems that the vendors had had with this subdivision. It asserts that the "main reason for the delays" is that the Thames Coromandel District Council "has taken an extremely cautious approach to this subdivision". Because of the subdivision’s proximity to Cathedral Cove there had been much opposition to the subdivision from the Whitianga Community Board and local iwi, and it is asserted that the council itself had taken a restrictive and "go slow" attitude to the subdivision to the point that "every single detail was examined or re-examined". The vendors’ solicitors asserted that their clients had "used their best endeavours and in fact have done much more than would be considered fair and reasonable to achieve title. They are not taking advantage of a situation allegedly brought about by them." The letter concluded by asserting:

The agreement signed by both parties allowed for cancellation if certain conditions were not met by a certain date. Despite the owners best endeavours this has not been able to be achieved, and a time must come when the agreement simply cannot continue as a fair bargain and come to an end. That point has past (sic) and they have cancelled the agreement as contemplated by that clause. The agreement is at an end.

The High Court determination

[23] It is apparent that, before the Associate Judge, Mr Morrison contended that the added words "or vendor" to clause 14 "were a variation to the original agreement, not introduced or accepted by [Mr and Mrs Welch]" [43].
[24] What the Associate Judge said about that appears in [44] of the judgment:

[44] Although the position concerning the Welches contract is not entirely clear, I am satisfied that the position as contended by Mr Morrison in paragraph [43] above is a reasonably arguable one, and on balance the Welches’ application to uphold their caveat should succeed here, pending a proper exploration of the parties’ rights at substantive trial. It is clearly the case that if, in any s145 application, a conflict arises on the evidence, the applicant’s evidence should be preferred for the purpose of this s145 hearing – McCrae v Rapana (HC Auckland, M633/94, 17 June 1994, Fisher J) and Familton v Nebraska Investments Limited. The evidence from Mr Welch as applicant is reasonably clear, and it is significant here that in this case there is no contradictory evidence provided by the respondents. In my view, the applicants, the Welches, have shown a reasonably arguable case to sustain their caveat, and they are entitled to the preservation order they seek. An order to this effect will follow.

The argument in this Court

[25] Mr Morrison supported the judgment under the appeal, essentially for the reasons given by the Associate Judge.
[26] Mr Withnall noted that there was no other evidence before the Court, than that of Mr Welch. He then said "the only inference which can be drawn" was that the words "or vendor" were on the contract "when it was finally returned to the purchasers". And, Mr Withnall argued, if as Mr Welch said (and the Court must accept, at least for present purposes) the purchasers did not agree to those words, then "clearly what they received was a counter-offer". There is therefore no contract; the offer must unreservedly assent to the exact terms proposed by the offeror (Reporoa Stores Limited v Treloar [1958] NZLR 177 (CA)). Hence, on Mr Withnall’s argument, "the purchaser’s [own] affidavit is fatal to its claim of a caveatable interest. Without a contract there is no interest in the land." If, on the other hand, there was a contract, then the vendors had validly terminated it.
[27] To the extent that Mr and Mrs Welch had asserted default on the part of the vendors by the letter of 18 November 2003 ([21] above), Mr Withnall said that was nothing more than an assertion - if it even amounted to that - and there was no evidence at all adduced of vendor default. On the contrary, the lengthy letter of explanation ([22] above) adduced by the respondents suggested plausible reasons for the delay as being "without fault" on the part of the vendors.

Disposition

[28] It is trite that to sustain a caveat the onus is on the caveator to show an arguable case for the interest claimed (New Zealand Limousin Cattle Breeders Society Inc v Robertson [1984] 1 NZLR 41 (CA)).
[29] As to the existence of a contract, the respondents cannot have it both ways. If there was a counter-offer, there was no (accepted) contract. If there was a contract (which was the basis on which the purchasers in fact proceeded) the issue is: was it validly terminated, by the vendors?
[30] This would involve two elements: first, an assertion of breach; and secondly, at least some evidence in support of that assertion.
[31] As to the first point, Mr Withnall said that the onus of proof of an allegation of breach of the kind apparently postulated by the caveators is on the party alleging it. He referred in that respect to Ansley v Prospectus Nominees Ltd [2004] 2 NZLR 590 (CA).
[32] Mr Morrison argued that the concluding words of the letter in [21] above were sufficient notice of breach.
[33] Assuming, solely for the purposes of argument, that the letter in question did give appropriate notice, Mr Withnall responded that there was no evidence of any character adduced to support the allegation.
[34] In endeavouring to support the High Court judgment, Mr Morrison argued that effectively the vendors were seeking to "transfer" to the purchasers an "unreasonable burden of adducing evidence of matters within the vendors’ knowledge or control". He said that effectively they were seeking to elevate their out-of-court solicitor’s letter to the status of evidence for and exculpatory of the vendors.
[35] Assuming the letter did give sufficient notice, which is doubtful to say the least, we agree with Mr Withnall that no evidence of any character has been adduced to support the allegation. We do not think that it is right to put an undue burden on caveators as to the kind of evidence they must adduce on an application to sustain a caveat. But on an allegation of this character there must be at least some evidence. Here there is none. That is sufficient to defeat this caveat, which must therefore lapse.

The Pope agreement

Further facts

[36] This agreement too was on the same standard form contract as was employed in the case of Mr and Mrs Welch.
[37] However in this case, clause 14.0 (again a special condition) differs. It reads as follows:

14.0 Settlement shall be fifteen (15) working days after the vendor’s solicitor has given the purchaser’s solicitor notice in writing that the titles are available. If such notice has not been given within 12 months of the date hereon, then the purchaser [or vendor] has the right to cancel this agreement.

[38] In this case, the words "or vendor" have again been added below the words "purchaser", but the hand-written edition has been initialled by or on behalf of all parties to the contract.
[39] It followed that, as the Associate Judge put it, "on the face of it" this agreement gave the vendors a right of cancellation, as titles were not available within 12 months of 24 January 2002, which was the date of the agreement. It will be recalled that the titles were not issued until 20 September 2004.
[40] As to how the additional words came about in this instance, in the only affidavit in the Pope proceeding, Mr Pope deposed:

The words in square brackets were hand written in at some point, but they were not the result of any discussion with us. All I recall is the contract being returned with various hand written amendments and a request from the respondents’ agent that I initial everything. It did not occur to me that the respondents were altering the contract in such a way as to give them the right to back out of the contract if they delayed the process for issuing title, though in principle I accepted that if it became impossible for the title to be issued then the contract should be at an end.

[41] When the 12 months period was almost up, Mr Pope’s solicitors wrote to the vendors’ solicitors noting the delay but confirming that Mr and Mrs Pope wanted to proceed with the transaction.
[42] On 11 February 2003 the vendors’ solicitors replied that "[our clients] ... would be quite happy to waive clause 14 on payment in full by your clients. Such payment to be held on deposit but undispersed in our trust account until issue of title." The Popes did not respond to that letter.
[43] On 21 May 2003 Mr and Mrs Pope’s solicitors wrote on their behalf saying that they understood that "since [February] good progress has been made ... We wonder therefore if you can let us have an estimate as to when title is like to be available. If the end is not yet in sight our clients will consider the proposal in your previous letter."
[44] From time to time thereafter Mr Pope made enquiries of the real estate agent about progress. He received an email from Richardsons Real Estate on 18 September 2003 saying that "things are happening": the driveway was to be widened, the power easements were being "sorted" by another person, and "title may be through by Christmas".
[45] In light of that communication, on 29 September 2003 Mr and Mrs Pope’s solicitors enquired when the vendor was likely to be ready to settle. The vendors’ solicitors replied, "We refer to our letter of the 11^th of February 2003 ... This letter serves to confirm our client’s withdrawal of that offer to waive clause 14 on payment in full by your clients and otherwise in terms of that letter."
[46] On 21 October 2003 the vendors’ solicitors wrote to the purchasers’ solicitors saying that their clients had used their best endeavours to obtain the issue of a separate title. And further, "Our clients, having taken advice from Senior Counsel, and having satisfied their contractual obligations with respect to satisfying the conditions in the Agreement have been unable to do so. Having been unable to satisfy the conditions in clause 14 of the contract within the time provided, the contract is accordingly at an end."
[47] The vendors’ solicitors protested, and sought "full particulars as to why your client is unable to obtain the issue of title, with details of all the surrounding circumstances."
[48] On 10 December 2004 the vendors’ solicitors replied in all relevant respects in identical terms to the letter which had been sent to Mr and Mrs Welch.

The High Court determination

[49] The Associate Judge noted that there was no sworn evidence on behalf of the appellants indicating the steps they took to have the subdivision completed and titles issued, and to explain the delays which had occurred. The Associate Judge then recited the correspondence which had been produced, and which we have set out, above.
[50] The Associate Judge held that:

[62] Although it is clear that the Popes as purchasers must establish a reasonably arguable entitlement to the caveatable interest they claim, I am satisfied by a small margin here that they have done sufficient to meet this test. In my view, the Popes have shown an arguable case against the respondents’ right to cancel the agreement, given particularly the absence of any evidence before the Court from the respondents as to the steps they may have taken to have the subdivisional plan deposited, and the reasons for the delay which occurred. I say this with the comments of Baragwanath J in Fu Hao Construction Limited v Landco Albany Limited noted at paragraph [51] above clearly in mind. [That case has since been reversed by this Court: Landco Albany Ltd v Fu Hao Construction Ltd CA179/04 30 November 2005.]

Disposition

[51] The Pope caveat comes down to very narrow points. The vendors had an unassailable right to cancel, after the expiration of the requisite time, so long as it was not them that had caused the time to run by (as, for instance, by not applying for needed consents, or suchlike matters). Counsel ran the same arguments, as in the case of the Welch caveat. In this instance there is not even an arguable assertion of breach; nor is there any evidence put forward as to why the vendors had acted inappropriately. This caveat too must therefore lapse.

Conclusion

[52] The appeals are allowed.
[53] We order that both the caveats in issue in this proceeding do lapse.
[54] The appellants will have costs of $6,000 and usual disbursements against the respondents, jointly and severally.

Solicitors:
Duncan Cotterill, Auckland for Appellants
Rainey Collins, Wellington for Respondents

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[1]	We have before us two appeals, which are being heard together as a matter of convenience, in related vendor and purchaser disputes.
[2]	The issue for determination is whether each of the respondents have caveatable interests with respect to separate agreements for sale and purchase entered into by them with the appellants.
[3]	Associate Judge Gendall held (HC WN CIV-2004-485-2398; HC WN CIV-2004-485-2399 18 February 2005) that the respondents arguably have caveatable interests. He ordered that caveats lodged by them do not lapse. The vendors now appeal to this Court against those determinations.

[4]	The respondents are the owners and developers of a subdivision at Hahei, on the Coromandel Peninsula. The respondents proposed to subdivide their land, retaining two sites for holiday homes for themselves, and to sell the remaining sections.
[5]	The proposed subdivision overlooks Cathedral Cove, which is a highly regarded, and much visited, geographical feature at one end of Hahei Beach.
[6]	On 13 March 2001 Mr and Mrs Welch signed an agreement to purchase lot 4 in the proposed subdivision for $225,000.
[7]	On 24 January 2002 Mr and Mrs Pope signed an agreement to purchase lot 6 in the proposed subdivision for $220,000.
[8]	At the time each of these contracts was entered into, the titles to the sections being purchased were not available. The individual contracts contemplated that the appellants would take steps to complete the subdivision. Final settlement of each sale was to take place when the title was available.
[9]	The issue of the titles was in fact much delayed. Titles to these parcels of land did not become available until 20 September 2004. That was some 42 months after the Welch contract, and 32 months after the Pope contract.
[10]	Before the titles became available, the vendors purported to exercise rights of cancellation under both contracts. They relied amongst other things on the delay in the issue of the respective titles. The purchasers did not accept those cancellations. It was in those circumstances that the caveats in issue before us were lodged.
[11]	It appears to be common ground that both Mr and Mrs Welch and Mr and Mrs Pope have, as purchasers, at all material times been ready, willing and able to complete their respective purchases. There is no allegation of any breach of obligation against them.
[12]	Mr Withnall QC’s interests contemplate that the applications to sustain the caveats will be dispositive of the litigation between the parties. Mr Morrison said that, in practical terms, that will likely be so. We do however note with some dismay that the underlying litigation was not pursued promptly; the merit case itself could have been disposed of by now.
[13]	Each of the agreements is a stand-alone transaction. Different periods of delay apply to each. We will take each agreement in turn.

[14]	This agreement is in the standard form approved by the REINZ and the Auckland District Law Society (Seventh Edition (2) July 1999).
[15]	Clause 14.0 (a special condition) states:

[16]	Someone has handwritten the words "or vendor" immediately below and slightly to the right of the word "purchaser" in the last line of this clause. As the Associate Judge said, "This alteration appears to bear the initial of one party only. Although it is somewhat unclear, this initial seems to include the letters ‘RD’ which may relate to the first-named [appellant] Mr Ross Dunlop."
[17]	The only evidence as to how this addition came about appears in the affidavit of Mr J W Welch dated 10 November 2004. At paragraph 5 he said, "Although it appears someone has handwritten ‘or vendor’ after ‘purchasers’ that was not an alteration or accepted by us."
[18]	The barely legible copy of the agreement for sale and purchase exhibited to that affidavit has clearly been faxed backwards and forwards between Richardsons Real Estate in Hahei and "L & J Welch", but no explanation is given in the affidavit, nor was one found by the Associate Judge, as to what those various transmissions relate to.
[19]	There were undoubtedly delays in the issue of separate title to this section. Mr and Mrs Welch’s solicitors made an enquiry of the vendors’ solicitors in January of 2003. They were advised that "recent delays have been caused by negotiations in relation to an easement to enable power to be led to the site. We believe that that matter is now settled and that we would expect the plan to be deposited within the next two months." It will be noted that there is no suggestion in that letter that there was no agreement between the parties.
[20]	On 21 October 2003 however, the vendors’ solicitors wrote to the (by then) purchasers’ solicitors in these terms:

[23]	It is apparent that, before the Associate Judge, Mr Morrison contended that the added words "or vendor" to clause 14 "were a variation to the original agreement, not introduced or accepted by [Mr and Mrs Welch]" [43].
[24]	What the Associate Judge said about that appears in [44] of the judgment:

[25]	Mr Morrison supported the judgment under the appeal, essentially for the reasons given by the Associate Judge.
[26]	Mr Withnall noted that there was no other evidence before the Court, than that of Mr Welch. He then said "the only inference which can be drawn" was that the words "or vendor" were on the contract "when it was finally returned to the purchasers". And, Mr Withnall argued, if as Mr Welch said (and the Court must accept, at least for present purposes) the purchasers did not agree to those words, then "clearly what they received was a counter-offer". There is therefore no contract; the offer must unreservedly assent to the exact terms proposed by the offeror (Reporoa Stores Limited v Treloar [1958] NZLR 177 (CA)). Hence, on Mr Withnall’s argument, "the purchaser’s [own] affidavit is fatal to its claim of a caveatable interest. Without a contract there is no interest in the land." If, on the other hand, there was a contract, then the vendors had validly terminated it.
[27]	To the extent that Mr and Mrs Welch had asserted default on the part of the vendors by the letter of 18 November 2003 ([21] above), Mr Withnall said that was nothing more than an assertion - if it even amounted to that - and there was no evidence at all adduced of vendor default. On the contrary, the lengthy letter of explanation ([22] above) adduced by the respondents suggested plausible reasons for the delay as being "without fault" on the part of the vendors.

[28]	It is trite that to sustain a caveat the onus is on the caveator to show an arguable case for the interest claimed (New Zealand Limousin Cattle Breeders Society Inc v Robertson [1984] 1 NZLR 41 (CA)).
[29]	As to the existence of a contract, the respondents cannot have it both ways. If there was a counter-offer, there was no (accepted) contract. If there was a contract (which was the basis on which the purchasers in fact proceeded) the issue is: was it validly terminated, by the vendors?
[30]	This would involve two elements: first, an assertion of breach; and secondly, at least some evidence in support of that assertion.
[31]	As to the first point, Mr Withnall said that the onus of proof of an allegation of breach of the kind apparently postulated by the caveators is on the party alleging it. He referred in that respect to Ansley v Prospectus Nominees Ltd [2004] 2 NZLR 590 (CA).
[32]	Mr Morrison argued that the concluding words of the letter in [21] above were sufficient notice of breach.
[33]	Assuming, solely for the purposes of argument, that the letter in question did give appropriate notice, Mr Withnall responded that there was no evidence of any character adduced to support the allegation.
[34]	In endeavouring to support the High Court judgment, Mr Morrison argued that effectively the vendors were seeking to "transfer" to the purchasers an "unreasonable burden of adducing evidence of matters within the vendors’ knowledge or control". He said that effectively they were seeking to elevate their out-of-court solicitor’s letter to the status of evidence for and exculpatory of the vendors.
[35]	Assuming the letter did give sufficient notice, which is doubtful to say the least, we agree with Mr Withnall that no evidence of any character has been adduced to support the allegation. We do not think that it is right to put an undue burden on caveators as to the kind of evidence they must adduce on an application to sustain a caveat. But on an allegation of this character there must be at least some evidence. Here there is none. That is sufficient to defeat this caveat, which must therefore lapse.

[36]	This agreement too was on the same standard form contract as was employed in the case of Mr and Mrs Welch.
[37]	However in this case, clause 14.0 (again a special condition) differs. It reads as follows:

[38]	In this case, the words "or vendor" have again been added below the words "purchaser", but the hand-written edition has been initialled by or on behalf of all parties to the contract.
[39]	It followed that, as the Associate Judge put it, "on the face of it" this agreement gave the vendors a right of cancellation, as titles were not available within 12 months of 24 January 2002, which was the date of the agreement. It will be recalled that the titles were not issued until 20 September 2004.
[40]	As to how the additional words came about in this instance, in the only affidavit in the Pope proceeding, Mr Pope deposed:

[41]	When the 12 months period was almost up, Mr Pope’s solicitors wrote to the vendors’ solicitors noting the delay but confirming that Mr and Mrs Pope wanted to proceed with the transaction.
[42]	On 11 February 2003 the vendors’ solicitors replied that "[our clients] ... would be quite happy to waive clause 14 on payment in full by your clients. Such payment to be held on deposit but undispersed in our trust account until issue of title." The Popes did not respond to that letter.
[43]	On 21 May 2003 Mr and Mrs Pope’s solicitors wrote on their behalf saying that they understood that "since [February] good progress has been made ... We wonder therefore if you can let us have an estimate as to when title is like to be available. If the end is not yet in sight our clients will consider the proposal in your previous letter."
[44]	From time to time thereafter Mr Pope made enquiries of the real estate agent about progress. He received an email from Richardsons Real Estate on 18 September 2003 saying that "things are happening": the driveway was to be widened, the power easements were being "sorted" by another person, and "title may be through by Christmas".
[45]	In light of that communication, on 29 September 2003 Mr and Mrs Pope’s solicitors enquired when the vendor was likely to be ready to settle. The vendors’ solicitors replied, "We refer to our letter of the 11^th of February 2003 ... This letter serves to confirm our client’s withdrawal of that offer to waive clause 14 on payment in full by your clients and otherwise in terms of that letter."
[46]	On 21 October 2003 the vendors’ solicitors wrote to the purchasers’ solicitors saying that their clients had used their best endeavours to obtain the issue of a separate title. And further, "Our clients, having taken advice from Senior Counsel, and having satisfied their contractual obligations with respect to satisfying the conditions in the Agreement have been unable to do so. Having been unable to satisfy the conditions in clause 14 of the contract within the time provided, the contract is accordingly at an end."
[47]	The vendors’ solicitors protested, and sought "full particulars as to why your client is unable to obtain the issue of title, with details of all the surrounding circumstances."
[48]	On 10 December 2004 the vendors’ solicitors replied in all relevant respects in identical terms to the letter which had been sent to Mr and Mrs Welch.

[49]	The Associate Judge noted that there was no sworn evidence on behalf of the appellants indicating the steps they took to have the subdivision completed and titles issued, and to explain the delays which had occurred. The Associate Judge then recited the correspondence which had been produced, and which we have set out, above.
[50]	The Associate Judge held that:

[52]	The appeals are allowed.
[53]	We order that both the caveats in issue in this proceeding do lapse.
[54]	The appellants will have costs of $6,000 and usual disbursements against the respondents, jointly and severally.