HECKENBERG & ANOR v DELAFORCE (NO 2) [2000] NSWCA 254

HECKENBERG & ANOR v DELAFORCE (NO 2) [2000] NSWCA 254

The motion failed because the appellants' arguments had not been overlooked. The basis for termination of the first Deed was not really in issue at trial and, in any event, the appellants' agreed and continuing non-performance of essential obligations supported the conclusion that the first Deed had been effectively brought to an end by mutual abandonment or repudiation, permitting the respondent to pursue restitution for total failure of consideration.

Jurisdiction
Australia
Judgment Date
08 September 2000
Procedural Posture
Application to Re Open or Reconsider Appeal Judgment / Notice of Motion Dealt With on the Papers After the Appeal Had Been Dismissed But Before Orders Were Entered
Outcome
By majority, the motion was dismissed with costs and the orders pronounced on 8 June 2000 dismissing the appeal were directed to be entered.
Legal Topics
['re Opening an Appeal Judgment' 'termination of Deed' 'total Failure of Consideration' 'restitutionary Relief While Contract Subsists' 'election Between Inconsistent Remedies' 'repudiation and Mutual Abandonment']
['contract Law' 'restitution' 'civil Procedure' 'appellate Procedure'] ['re Opening an Appeal Judgment' 'termination of Deed' 'total Failure of Consideration' 'restitutionary Relief While Contract Subsists' 'election Between Inconsistent Remedies' 'repudiation and Mutual Abandonment']

Case Brief

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Procedural Posture

Application to Re Open or Reconsider Appeal Judgment / Notice of Motion Dealt With on the Papers After the Appeal Had Been Dismissed But Before Orders Were Entered

Legal Issues

  1. 1 ["Whether the Court of Appeal should reconsider paragraphs 26, 44 and 45 of Mason P's earlier reasons and set aside the orders dismissing the appeal." 'Whether the earlier judgment proceeded on an erroneous assumption that it was common ground at trial that whichever deed was extant was terminated by commencement of the 1993 proceedings.' 'Whether restitutionary relief was available only if the first Deed had been validly brought to an end by the respondent.' 'Whether notice to perform was required before the first Deed could be treated as terminated.' "Whether the appellants' non-performance evidenced repudiation or mutual abandonment."]

Ratio Decidendi

The motion failed because the appellants' arguments had not been overlooked. The basis for termination of the first Deed was not really in issue at trial and, in any event, the appellants' agreed and continuing non-performance of essential obligations supported the conclusion that the first Deed had been effectively brought to an end by mutual abandonment or repudiation, permitting the respondent to pursue restitution for total failure of consideration.

Court Disposition

By majority, the motion was dismissed with costs and the orders pronounced on 8 June 2000 dismissing the appeal were directed to be entered.

Orders

  • ['Motion dismissed with costs.' 'Orders pronounced on 8 June 2000 to be entered.' 'Appellants to have liberty to move for a stay on notice to the respondent.']