Almond Investors Ltd v Kualitree Nursery Pty Ltd

Almond Investors Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a dispute with Kualitree Nursery Pty Ltd (the respondent). The core of the dispute involved allegations of anticipatory breach and repudiation of a contract.

The Court of Appeal was required to determine whether the respondent had repudiated the contract by failing to perform its obligations, and whether the appellant had validly elected to affirm the contract despite the respondent's alleged repudiation. A further issue was whether a breach of a non-essential term by the terminating party could negate their right to terminate for repudiation by the other party.

The Court found that the respondent had repudiated the contract. It reasoned that the respondent's conduct demonstrated an intention no longer to be bound by the contract. The Court also held that the appellant had not affirmed the contract, but rather had elected to treat the contract as repudiated. Crucially, the Court determined that a breach of a non-essential term by the appellant did not preclude it from terminating the contract for the respondent's repudiation.

The appeal was allowed. The Court directed the parties to agree on costs, failing which they were to file submissions on the issue.