Commercial Law Index

The claimant/appellant purported to buy a property offered to it by the defendant/first respondent and consolidate the transaction with its purchase of another of the latter’s properties. This was proposed via counter-offer. The appellant proceeded to pay a down-payment for both properties after the agreed time-period, the bulk of which was unilaterally appropriated by the respondent towards payment for only one of them in reverting to the terms of the original agreement. Aggrieved, the appellant approached the High Court seeking layered relief to uphold the consolidated sale. The trial court found that, on the facts, the consolidation agreement was valid but conditional on the specified time-frame. It was therefore aborted as time was of the essence and payment had not been made in the required period. Judgment was entered in favour of the first respondent.

Challenging the trial court’s decision, the appellant argued that a binding agreement had been created, and the respondent had waived the issue of timeous payment when it accepted the appellant’s performance beyond the stipulated time-period. The court dismissed this claim, finding in concurrence with the court below that the failure to meet the time requirement – a term that was accepted by the appellant – thwarted the consolidation. No waiver had occurred.

Specific performance was unavailable to the appellant as the respondent had not breached their existing agreement. Its claim attacking the trial court’s jurisdiction to make an order regarding the transfer and registration of the property – directed at the second respondent – also failed.

The appeal was accordingly dismissed.