Bulwer Pty Ltd v Ryan

In the matter of Bulwer Pty Ltd v Ryan, the Queensland Supreme Court was tasked with determining whether the applicant, Bulwer Pty Ltd, was entitled to terminate a contract for the sale of two sub-sub-leases and shares in Hamilton Island Development A Pty Ltd. The respondents, Ryan, argued that the termination was invalid based on grounds including waiver, estoppel, and the applicant taking advantage of their own wrong. Central to the dispute was the interpretation of the contract, specifically whether time remained of the essence and whether there had been a clear and unequivocal representation permitting an extension beyond the stipulated deadlines.

The court needed to decide whether the applicant had validly terminated the contract on 14 December 2022. This required examining the terms of the contract, the communications between the parties, and the conduct of the parties’ legal representatives. The respondents contended that time had ceased to be of the essence and that there had been an agreement to extend the deadlines, which would negate the applicant’s right to terminate. However, the court found that there was no clear and unequivocal representation to this effect and that time had remained of the essence throughout the negotiations.

The court ultimately determined that the applicant had validly terminated the contract. The documentary evidence, including email correspondence and extensions granted for obtaining consents, consistently showed that time remained of the essence. The court found that there was no communication or conduct by the respondents that permitted a conclusion that time had ceased to be essential. Additionally, the court preferred the evidence of the respondents’ conveyancer over that of the applicant’s conveyancer, finding it more accurate and reflective of the conversations. Therefore, the applicant’s right to terminate the contract was upheld.

The court declared that the applicant validly terminated the contract on 14 December 2022, ordered the return of the sum paid into court, and directed the parties to exchange written submissions on costs within 14 days, to be determined on the papers without personal appearance.