Sharjade Pty Ltd v The Commonwealth of Australia; RAAF (Landings) Ex-Servicemen Charitable Fund Pty Ltd (formerly Darwinia Estate Pty Ltd) v Sharjade Pty Ltd [2009] NSWCA 373

Sharjade Pty Ltd v The Commonwealth of Australia; RAAF (Landings) Ex-Servicemen Charitable Fund Pty Ltd (formerly Darwinia Estate Pty Ltd) v Sharjade Pty Ltd [2009] NSWCA 373

The Commonwealth was entitled to terminate the Option Agreement as, upon exercise of the option, a contract for sale existed and Darwinia's obligations to provide a bank guarantee and pay interest arose; time for compliance was made of the essence by notice. Darwinia was entitled to terminate the Heads of Agreement for Sharjade's breach of its essential obligation to obtain finance, regardless of Darwinia's own non-essential breach, as the breaches were not interdependent or causally related. Sharjade was not ready, willing and able to perform, so could not claim damages. The tort of inducing breach was not established; the Commonwealth lacked sufficient knowledge of the Heads of...

Jurisdiction
Australia
Judgment Date
26 November 2009
Procedural Posture
Appeal / Court of Appeal Judgment on Appeal From Supreme Court
Outcome
Darwinia's leave to appeal granted and appeal allowed; Sharjade's claim against Darwinia dismissed with costs; Sharjade's appeal dismissed with costs.
Legal Topics
['termination for Breach of Contract' 'option Agreements' 'obligations Under Heads of Agreement' 'frustration' 'anticipatory Breach' 'inducing Breach of Contract']
['contracts' 'torts'] ['termination for Breach of Contract' 'option Agreements' 'obligations Under Heads of Agreement' 'frustration' 'anticipatory Breach' 'inducing Breach of Contract']

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Procedural Posture

Appeal / Court of Appeal Judgment on Appeal From Supreme Court

Legal Issues

  1. 1 ['Whether the Commonwealth was entitled to terminate the Option Agreement' 'Whether Darwinia was entitled to terminate the Heads of Agreement' 'Whether the Heads of Agreement was conditioned on the existence of a binding contract for the purchase of the land or frustrated by termination of that contract' 'Whether the Commonwealth committed the tort of inducing breach of contract']

Ratio Decidendi

The Commonwealth was entitled to terminate the Option Agreement as, upon exercise of the option, a contract for sale existed and Darwinia's obligations to provide a bank guarantee and pay interest arose; time for compliance was made of the essence by notice. Darwinia was entitled to terminate the Heads of Agreement for Sharjade's breach of its essential obligation to obtain finance, regardless of Darwinia's own non-essential breach, as the breaches were not interdependent or causally related. Sharjade was not ready, willing and able to perform, so could not claim damages. The tort of inducing breach was not established; the Commonwealth lacked sufficient knowledge of the Heads of...

Court Disposition

Darwinia's leave to appeal granted and appeal allowed; Sharjade's claim against Darwinia dismissed with costs; Sharjade's appeal dismissed with costs.

Orders

  • ["In Darwinia's application for leave to appeal: (1) Leave to appeal granted. (2) Notice of Appeal to be filed within fourteen days. (3) Appeal allowed. (4) Orders of primary judge in relation to Sharjade's claim against Darwinia set aside. (5) In lieu thereof, Sharjade's claim against Darwinia dismissed with costs....