McGrath v Beumer; Beumer v McGrath [2010] NSWSC 892

McGrath v Beumer; Beumer v McGrath [2010] NSWSC 892

Clause 6 of the Heads of Agreement was enlivened due to reasons not attributable to the fault of Glenn Thompson or the defendant, particularly the delay in obtaining a permit to acquire. No blameworthiness could be attributed to either party for non-transfer by the stipulated date. By subsequent conduct, the plaintiff acted as if the agreement remained in force, and waiver principles prevented him from relying on the termination provision. The proceedings were settled and neither notice of motion should be granted.

Jurisdiction
Australia
Judgment Date
12 August 2010
Procedural Posture
Notice of Motion / Judgment on Motion
Outcome
Both notices of motion dismissed. Plaintiff to pay defendant's costs on the 25 March 2010 notice of motion.
Legal Topics
['construction of Documents' 'settlement of Disputes' 'effect of Mediation Heads of Agreement']
['contract Law' 'civil Procedure'] ['construction of Documents' 'settlement of Disputes' 'effect of Mediation Heads of Agreement']

Case Brief

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Procedural Posture

Notice of Motion / Judgment on Motion

Legal Issues

  1. 1 ['Whether the proceedings between the parties were settled by the Heads of Agreement' 'Interpretation of clauses 6 and 7 of the Heads of Agreement' 'Whether fault or blame can be attributed to either party or Glenn Thompson for non-transfer of the rifle by the date stipulated' 'Concept of waiver in contractual performance']

Ratio Decidendi

Clause 6 of the Heads of Agreement was enlivened due to reasons not attributable to the fault of Glenn Thompson or the defendant, particularly the delay in obtaining a permit to acquire. No blameworthiness could be attributed to either party for non-transfer by the stipulated date. By subsequent conduct, the plaintiff acted as if the agreement remained in force, and waiver principles prevented him from relying on the termination provision. The proceedings were settled and neither notice of motion should be granted.

Court Disposition

Both notices of motion dismissed. Plaintiff to pay defendant's costs on the 25 March 2010 notice of motion.

Orders

  • ['The notice of motion filed on 25 March 2010 is dismissed.' 'The notice of motion filed on 6 March 2010 is dismissed.' "The plaintiff is to pay the defendant's costs on the notice of motion filed on 25 March 2010."]