Play MR Pty Ltd v Heard Marketing Pty Ltd [2017] NSWDC 311

Play MR Pty Ltd v Heard Marketing Pty Ltd [2017] NSWDC 311

The handwritten notation on the contract, accepted by conduct, made the timely completion of an operational platform by 1 April 2016 an essential term. The defendant’s failure to meet this timing constituted a breach of an essential term, entitling the plaintiff to terminate the contract and recover damages for costs incurred in mitigation and substitute performance. The Amended Cross-Claim was dismissed as the defendant was not entitled to outstanding fees given its breach.

Jurisdiction
Australia
Judgment Date
09 November 2017
Procedural Posture
Civil / Principal Judgment
Outcome
Judgment for the plaintiff. Amended Cross-Claim dismissed.
Legal Topics
['handwritten Notation as Contractual Term' 'breach of Contract' 'essential Term' 'contract Variation' 'affirmation and Termination of Contract' 'damages for Breach']
['contract'] ['handwritten Notation as Contractual Term' 'breach of Contract' 'essential Term' 'contract Variation' 'affirmation and Termination of Contract' 'damages for Breach']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil / Principal Judgment

Legal Issues

  1. 1 ['What are the terms of the Contract entered into by the parties in January 2016?' 'Do the express terms of the Contract create timing obligations and specify the content management system?' 'Is the Contract clear or ambiguous and do pre-contractual communications assist?' 'Was there a breach of contract by the defendant?' 'Was time of the essence for contract performance?' 'Did the plaintiff affirm, vary, or terminate the Contract?' 'What damages is the plaintiff entitled to?' 'Has the plaintiff breached the Contract or the September 2015 contract in regard to outstanding fees?' 'What damages, if any, is the defendant entitled to on its Cross-Claim?']

Ratio Decidendi

The handwritten notation on the contract, accepted by conduct, made the timely completion of an operational platform by 1 April 2016 an essential term. The defendant’s failure to meet this timing constituted a breach of an essential term, entitling the plaintiff to terminate the contract and recover damages for costs incurred in mitigation and substitute performance. The Amended Cross-Claim was dismissed as the defendant was not entitled to outstanding fees given its breach.

Court Disposition

Judgment for the plaintiff. Amended Cross-Claim dismissed.

Orders

  • ['Judgment for the plaintiff on the Statement of Claim and the Amended Cross-Claim; Amended Cross-Claim is dismissed.' "The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed." 'The parties have liberty to apply to vary order (2) above.' 'The parties are to bring in short minutes of...