Upside Property Group Pty Ltd v Tekin [2017] NSWCA 336

Upside Property Group Pty Ltd v Tekin [2017] NSWCA 336

Although the primary judge erred by applying the test for recovery of substantial damages when considering the condition precedent to bringing a damages claim for anticipatory breach, the evidence did not establish that the appellant had a reasonable prospect of raising the funds necessary to complete the contract. The appellant therefore failed to prove an element of its cause of action. In any event, the primary judge did not err in accepting the respondent's valuation evidence or in giving no significant weight to informal and unaccepted offers, so the appellant did not establish compensable loss.

Jurisdiction
Australia
Judgment Date
18 December 2017
Procedural Posture
Appeal / Appeal to the Court of Appeal From the Supreme Court, Equity Division Decision [2016] NSWSC 1260 Dismissing the Purchaser's Claim for Damages
Outcome
Appeal dismissed.
Legal Topics
['anticipatory Breach' 'repudiation' 'readiness and Willingness to Perform' 'loss of Bargain Damages' 'valuation of Development Land' 'unaccepted Offers as Valuation Evidence']
['contracts' 'property' 'civil Procedure'] ['anticipatory Breach' 'repudiation' 'readiness and Willingness to Perform' 'loss of Bargain Damages' 'valuation of Development Land' 'unaccepted Offers as Valuation Evidence']

Case Brief

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Procedural Posture

Appeal / Appeal to the Court of Appeal From the Supreme Court, Equity Division Decision [2016] NSWSC 1260 Dismissing the Purchaser's Claim for Damages

Legal Issues

  1. 1 ["Whether the primary judge erred in dismissing the purchaser's claim for loss of bargain damages following acceptance of the vendor's repudiation of a contract for sale of land." 'Whether the purchaser satisfied the requirement of readiness and willingness to perform at the time of termination for anticipatory breach.' 'Whether the purchaser also had to prove on the balance of probabilities that it would have proceeded to completion but for the repudiation.' 'Whether the primary judge erred in giving no significant weight to informal and unaccepted offers to purchase the property when assessing market value.']

Ratio Decidendi

Although the primary judge erred by applying the test for recovery of substantial damages when considering the condition precedent to bringing a damages claim for anticipatory breach, the evidence did not establish that the appellant had a reasonable prospect of raising the funds necessary to complete the contract. The appellant therefore failed to prove an element of its cause of action. In any event, the primary judge did not err in accepting the respondent's valuation evidence or in giving no significant weight to informal and unaccepted offers, so the appellant did not establish compensable loss.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' "The appellant to pay the respondent's costs of the appeal."]