Breese v Cowper [2002] NSWSC 1225

Breese v Cowper [2002] NSWSC 1225

A binding contract for joint purchase and development existed among the six parties, but no agreement on the restrictive covenant was reached. The original contract continued (as varied) after company substitution. Wayne and Joan Cowper wrongfully repudiated the agreement by unilaterally withdrawing, leading to plaintiffs' justified election to terminate, entitling them to damages.

Parties
First Plaintiff: Peter Craig Llewellyn Breese; Second Plaintiff: Jillian Margaret Breese; First Defendant: Wayne Robert Cowper; Second Defendant: Joan Lorraine Cowper; Third Defendant: Lee Christopher Cowper; Fourth Defendant: Yvette Bernice Cowper; Fifth Defendant: 28 Narrabeen Park Pty Limited; Sixth Defendant: New Start 250 Pty Limited t/as Wayne R. Cowper
Jurisdiction
Australia
Judgment Date
19 December 2002
Procedural Posture
Equity Proceedings / Judgment After Expedited Hearing
Outcome
Plaintiffs entitled to declaration of wrongful repudiation and damages, and declaration that they have ceased as directors and shareholders. Cross-claim declarations granted.
Legal Topics
Contract Formation, Repudiation, Joint Venture, Share Cancellation, Reduction of Capital
Contract Law Corporations Law Contract Formation Repudiation Joint Venture Share Cancellation Reduction of Capital

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Parties

Peter Craig Llewellyn Breese

First Plaintiff

Jillian Margaret Breese

Second Plaintiff

Wayne Robert Cowper

First Defendant

Joan Lorraine Cowper

Second Defendant

Lee Christopher Cowper

Third Defendant

Yvette Bernice Cowper

Fourth Defendant

28 Narrabeen Park Pty Limited

Fifth Defendant

New Start 250 Pty Limited t/as Wayne R. Cowper

Sixth Defendant

Procedural Posture

Equity Proceedings / Judgment After Expedited Hearing

Legal Issues

  1. 1 Whether a binding contract existed between plaintiffs and defendants regarding purchase and development of property
  2. 2 Whether there was an agreement on a restrictive covenant affecting the property
  3. 3 Whether the substitution of a company as purchaser extinguished or varied the contractual arrangements

Ratio Decidendi

A binding contract for joint purchase and development existed among the six parties, but no agreement on the restrictive covenant was reached. The original contract continued (as varied) after company substitution. Wayne and Joan Cowper wrongfully repudiated the agreement by unilaterally withdrawing, leading to plaintiffs' justified election to terminate, entitling them to damages.

Court Disposition

Plaintiffs entitled to declaration of wrongful repudiation and damages, and declaration that they have ceased as directors and shareholders. Cross-claim declarations granted.

Orders

  • Declaration that development agreement was unlawfully repudiated by first and second defendants, accepted by plaintiffs, and is at an end and unenforceable.
  • Damages to plaintiffs for breach of contract (quantum to be determined).