Cooper v Kinsella [2011] NSWCA 45

Cooper v Kinsella [2011] NSWCA 45

Redrock breached the Loan Agreement by not fulfilling the July 2005 order and, through its conduct and statements, intimated that further compliance would be futile, relieving Mr Cooper from further conditions precedent. The respondents as guarantors are liable for loss of bargain damages from September 2005, calculated per the schedule, as the Guarantee did not enlarge but mirrored Redrock's liability. The orders below were set aside and judgment given for Mr Cooper with interest and costs.

Parties
Appellant: Benjamin Robert COOPER; First Respondent: Ian Anthony KINSELLA; Second Respondent: Simon STONIER; Third Respondent: Scott Benjamin WRIGHT
Jurisdiction
Australia
Judgment Date
11 March 2011
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed
Legal Topics
Breach of Contract, Repudiation, Guarantor's Liability, Damages, Condition Precedent, Application of Peter Turnbull Principle
Contract Guarantee Breach of Contract Repudiation Guarantor's Liability Damages Condition Precedent Application of Peter Turnbull Principle

Case Brief

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Parties

Benjamin Robert COOPER

Appellant

Ian Anthony KINSELLA

First Respondent

Simon STONIER

Second Respondent

Scott Benjamin WRIGHT

Third Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Did Redrock breach the agreement?
  2. 2 Can repudiation be relied upon, and if so did Redrock repudiate the agreement?
  3. 3 Did Cooper accept the repudiation?

Ratio Decidendi

Redrock breached the Loan Agreement by not fulfilling the July 2005 order and, through its conduct and statements, intimated that further compliance would be futile, relieving Mr Cooper from further conditions precedent. The respondents as guarantors are liable for loss of bargain damages from September 2005, calculated per the schedule, as the Guarantee did not enlarge but mirrored Redrock's liability. The orders below were set aside and judgment given for Mr Cooper with interest and costs.

Court Disposition

Appeal allowed

Orders

  • Orders below set aside
  • Judgment for Mr Cooper against the respondents for $133,923