BHA Industries Pty Ltd t/as Forrester Homes v Gorokan Display Village Pty Ltd

BHA Industries Pty Ltd, trading as Forrester Homes, appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales. The dispute concerned a contract for the sale of land, specifically whether the respondent, Gorokan Display Village Pty Ltd, had validly terminated the contract.

The primary legal issue before the Court of Appeal was whether Gorokan Display Village Pty Ltd had waived its right to terminate the contract for Forrester Homes' failure to comply with a condition precedent, namely the obtaining of a development approval by a specified date. The court also considered whether Gorokan Display Village Pty Ltd had repudiated the contract by its conduct.

The Court of Appeal found that Gorokan Display Village Pty Ltd had not waived its right to terminate. It reasoned that the conduct of Gorokan Display Village Pty Ltd, in continuing to negotiate and seek assurances from Forrester Homes after the due date for the development approval, did not amount to an election to affirm the contract. Instead, the court held that Gorokan Display Village Pty Ltd had acted reasonably in seeking to ascertain whether the condition precedent could still be fulfilled. Furthermore, the court determined that Gorokan Display Village Pty Ltd had not repudiated the contract, as its actions were consistent with seeking to uphold the agreement.

The appeal was dismissed, and the decision of the Supreme Court of New South Wales was affirmed.