Net Parts International Pty Ltd & Ors v Kenoss Pty Ltd & Ors [2008] NSWCA 324

Net Parts International Pty Ltd & Ors v Kenoss Pty Ltd & Ors [2008] NSWCA 324

The appeal failed because the second respondent's solicitor spoke only for the second respondent, and under Lion White the appellants could not terminate for anticipatory breach without the assent of the first respondent, a joint purchaser that had not repudiated. In any event, the 14 December 2004 notice was expressed to be given by Crownview Developments Pty Limited, which was not a party to the agreement, and the statement of claim did not purport to terminate the contract. The appellants' alternative damages claim also failed because, absent anticipatory breach, they had not offered performance of their own concurrent obligations before complaining of the purchasers' failure to settle.

Jurisdiction
Australia
Judgment Date
04 December 2008
Procedural Posture
Appeal in Contract Proceedings Concerning Non Completion of a Share Sale Agreement / Appeal From Supreme Court of New South Wales, Common Law Division, Decision of Hulme J
Outcome
Appeal dismissed with costs.
Legal Topics
['share Sale Agreement' 'anticipatory Breach' 'repudiation' 'rescission and Termination' 'completion' 'concurrent Obligations' 'abandonment of Contract']
['contract Law'] ['share Sale Agreement' 'anticipatory Breach' 'repudiation' 'rescission and Termination' 'completion' 'concurrent Obligations' 'abandonment of Contract']

Case Brief

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Procedural Posture

Appeal in Contract Proceedings Concerning Non Completion of a Share Sale Agreement / Appeal From Supreme Court of New South Wales, Common Law Division, Decision of Hulme J

Legal Issues

  1. 1 ["Whether the second respondent's solicitor's statement constituted a repudiation entitling the appellants to terminate the contract against both purchasers." 'Whether termination by acceptance of an anticipatory breach required the assent of all parties to the contract where the purchasers were joint contracting parties.' 'Whether the notice of 14 December 2004 or the statement of claim validly terminated the contract.' "Whether the appellants were entitled to damages for the purchasers' failure to complete absent an effective termination." "Whether the trial judge's conclusion that the contract had been abandoned should stand."]

Ratio Decidendi

The appeal failed because the second respondent's solicitor spoke only for the second respondent, and under Lion White the appellants could not terminate for anticipatory breach without the assent of the first respondent, a joint purchaser that had not repudiated. In any event, the 14 December 2004 notice was expressed to be given by Crownview Developments Pty Limited, which was not a party to the agreement, and the statement of claim did not purport to terminate the contract. The appellants' alternative damages claim also failed because, absent anticipatory breach, they had not offered performance of their own concurrent obligations before complaining of the purchasers' failure to settle.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed.' "The appellants are to pay the respondents' costs of the appeal."]