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Cooper v Kinsella

Cooper v Kinsella

Case [2011] NSWCA 45 11 March 2011

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cooper v Kinsella [2011] NSWCA 45
Hearing dates: 4 February 2011
Decision date: 11 March 2011
Before: Allsop P at 1; Hodgson JA at 4; Sackville AJA at 67
Decision:
(1) Appeal allowed.
(2) Orders below set aside.
(3) Judgment for Mr Cooper against the respondents for $133,923.
(4) Order that the respondents pay Mr Cooper interest on $133,923 from 1 September 2005 until to-day at prescribed rates.
(5) Order that the respondents pay Mr Cooper's costs of the proceedings below.
(6) Order that the respondents pay Mr Cooper's costs of the appeal, and that they have a certificate under Suitors' Fund Act 1951 if otherwise eligible.
If within fourteen days the parties provide the Court with an agreed calculation of interest up to to-day, the Court will give judgment for that amount (pursuant to order (4) above), to take effect from to-day.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
CONTRACT - Breach - Repudiation - Whether actual breach in the circumstances conveyed repudiation - Whether repudiation accepted - Whether innocent party relieved from performing condition precedent - Application of principle in Peter Turnbull & Co Pty Limited v Mundus Trading Co (Australasia) Pty Limited [1954] HCA 25; (1954) 90 CLR 235.
GUARANTEE - Whether contract of guarantee imposed liability greater than that of principal debtor.
Cases Cited: Amaya v Everest Property Holdings Pty Ltd [2010] NSWCA 315
Asia Television Ltd v Yau's Entertainment Pty Ltd [2003] FCA 720
Austral Standard Cables Pty Ltd v Walker Nominees Pty Ltd (1992) 26 NSWLR 524
Foran v Wight [1989] HCA 51; 168 CLR 385
Holland v Wiltshire (1954) HCA 42; 90 CLR 409
Mahoney v Lindsay (1980) 33 ALR 601
Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235
Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418
Vitol SA v Norelf Ltd [1996] AC 800; 3 All ER 193
Category: Principal judgment
Parties: Benjamin Robert COOPER (appellant)
Ian Anthony KINSELLA (first respondent)
Simon STONIER (second respondent)
Scott Benjamin WRIGHT (third respondent)
Representation: Counsel:
P BEALE/ E CHRYSOSTOMOU (appellant)
G B COLYER (respondents)
Solicitors:
Mills Oakley Lawyers (appellant)
Kemp Strang Lawyers (respondents)

File Number(s): 2008/319361
Decision under appeal

Date of Decision:

2010-03-04 00:00:00

Before:

Robison DCJ

File Number(s):

4604/2009

HEADNOTE

Facts

The appellant (Mr Cooper) and respondents (Mr Kinsella, Mr Stonier and Mr Wright) were variously involved in the nightclub and wholesale beverage industries. Pursuant to a share-sale agreement entered into in May 2004, Mr Cooper entered into a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cooper v Kinsella

Details

AGLC: Cooper v Kinsella [2011] NSWCA 45
Case: [2011] NSWCA 45
Decision Date: 11 March 2011

CaseChat Overview and Summary

The appeal concerned a dispute arising from a contract and a related guarantee. The appellant, Mr Cooper, sought to recover a sum of money from the respondents. The Court of Appeal of New South Wales was required to determine whether the respondents' actions constituted a repudiation of the contract and, if so, whether Mr Cooper was entitled to accept this repudiation and be relieved from performing a condition precedent. The Court also considered whether a contract of guarantee imposed a liability on the guarantor that was greater than that of the principal debtor.

The central legal issues involved the interpretation of the parties' conduct in relation to the contract and the principles of repudiation in contract law. Specifically, the court had to assess whether the actual breach of the contract by one party conveyed an intention to be no longer bound by its terms, thereby amounting to a repudiation. Furthermore, the court needed to determine if the innocent party had validly accepted such a repudiation, which would discharge them from their own obligations under the contract, including any condition precedent. The court also examined the scope of liability under a contract of guarantee.

The Court of Appeal applied the principle established in *Peter Turnbull & Co Pty Limited v Mundus Trading Co (Australasia) Pty Limited*, which concerns the assessment of whether a party's conduct amounts to a repudiation of a contract. The court found that the respondents' actions did indeed constitute a repudiation. Having accepted this repudiation, Mr Cooper was relieved from performing the condition precedent. The court also determined that the contract of guarantee did not impose a liability greater than that of the principal debtor.

Consequently, the appeal was allowed, and the orders of the court below were set aside. Judgment was entered for Mr Cooper against the respondents for $133,923, together with interest and costs of both the proceedings below and the appeal. The court also made provision for the parties to agree on a calculation of interest within fourteen days.

Orders

Orders of the court

(1) Appeal allowed.

(2) Orders below set aside.

(3) Judgment for Mr Cooper against the respondents for $133,923.

(4) Order that the respondents pay Mr Cooper interest on $133,923 from 1 September 2005 until to-day at prescribed rates.

(5) Order that the respondents pay Mr Cooper's costs of the proceedings below.

(6) Order that the respondents pay Mr Cooper's costs of the appeal, and that they have a certificate under Suitors' Fund Act 1951 if otherwise eligible.

If within fourteen days the parties provide the Court with an agreed calculation of interest up to to-day, the Court will give judgment for that amount (pursuant to order (4) above), to take effect from to-day.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Cooper v Kinsella [2011] NSWCA 45

Most Recent Citation

Letizia Building Co Pty Ltd v Redglow Asset Pty Ltd [2013] WASC 171

Cases citing this decision · 5 of 5 shown

Pickett v Savage
[2024] NSWCATCD 19 Para 70

…at an end is sufficient: see Vitol SA v Norelf Ltd [1996] AC 800; 3 All ER 193 at 200 per Lord Steyn, and cited with approval in Cooper v Kinsella [2011] NSWCA 45 at [70]. Secondly, where the innocent party has by conduct elected to treat the contract as at an end, it is sufficient that the fact of election comes…
Addinos Pty Ltd v OJ Pippin Homes Pty Ltd
[2022] QDC 205 Para 10

…ion or conduct clearly and unequivocally conveys to the repudiating party that that [sic] aggrieved party is treating the contract as at an end. [79] [2011] NSWCA 45 at [70].…
Play Mr Pty Ltd v Heard Marketing Pty Ltd
[2017] NSWDC 311 Para 137

…In Cooper v Kinsella [2011] NSWCA 45, Hodgson JA (with whom Allsop P agreed) stated the following in relation to whether correspondence amounted to acceptance of repudiation:…
Letizia Building Co Pty Ltd v Redglow Asset Pty Ltd
[2013] WASC 171 Para 1

…iltshire (1954) 90 CLR 409, 416; Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 [155]; Ryder v Frohlich [119]; Cooper v Kinsella [2011] NSWCA 45 [70]; Highfield Property Investments Pty Ltd v Commercial & Residential Developments (SA) Pty Ltd [2012] SASC 165 [279]; Yule v Smith [2013] NSWSC 209…
Cooper v Kinsella (No 2)
[2011] NSWCA 140 Para 1

…HODGSON JA: The principal decision of this appeal was given on 11 March 2011: [2011] NSWCA 45. On that occasion, the Court made the following orders:…

View all 5 citing cases →

Cases cited in this decision · 9 of 9 shown

Amaya v Everest Property Holdings Pty Ltd
[2010] NSWCA 315 Para 1

…-422, per Brennan J; at 433-434, per Deane J; at 456-457, per Gaudron J; Austral Standard Cables v Walker ; Amaya v Everest Property Holdings Pty Ltd [2010] NSWCA 315. It seems to be accepted that, despite Dixon CJ's reference to a " request " in Peter Turnbull , a request to refrain from conduct is not necessary.…
Asia Television Ltd v Yau's Entertainment Pty Ltd
[2003] FCA 720 Para 1

…in a case of this kind as they do to cases involving mutually dependent concurrent obligations: cf Asia Television Ltd v Yau's Entertainment Pty Ltd [2003] FCA 720, at [8]-[11], per Gyles J. If they do, a party seeking dispensation from a condition precedent must show that it did not satisfy the condition preced…
Foran v Wight
[1989] HCA 51 Para 1

…at it is useless for the other to proceed to completion of the contract of sale: see, for example, Mahoney v Lindsay (1980) 33 ALR 601; Foran v Wight [1989] HCA 51; 168 CLR 385, at 410-411, per Mason CJ; 419-422, per Brennan J; at 433-434, per Deane J; at 456-457, per Gaudron J; Austral Standard Cables v Walker…
Holland v Wiltshire
[1954] HCA 42 Para 1

…lied on as terminating the contract, nor to identify the precise point at which a contract has been terminated. In Holland v Wiltshire (1954) HCA 42; 90 CLR 409, for example, all three members of the High Court held that a vendor under a contract of sale had accepted the purchaser's repudiation, but each had…
Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd
[1954] HCA 25 Para 1

…As to the significance of Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; 90 CLR 235, if there was in fact no acceptance of the serious breach or repudiation (though, in my view, there was) it can be concluded that there was no retraction of the repudiation that was made in M…
Suttor v Gundowda Pty Ltd
[1950] HCA 35 Para 1

…stances, in my opinion Mr Cooper is not precluded from relying on repudiation in this Court, by the principles discussed in Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418.…
[1996] AC 800
[1996] AC 800 Para 1

…inated the contract. The principles were summarised by Lord Steyn, with whom all other members of the House of Lords agreed, in Vitol SA v Norelf Ltd [1996] AC 800; 3 All ER 193, at 200:…
[1989] AC 788
[1989] AC 788

…has an election to accept the repudiation or to affirm the contract: Fercometal SARL v Mediterranean Shipping Co SA , The Simona [1988] 2 All ER 742, [1989] AC 788.…
Mahoney v Lindsay
[1980] 1 WLR 1229 Para 1

…where one party has intimated that it is useless for the other to proceed to completion of the contract of sale: see, for example, Mahoney v Lindsay (1980) 33 ALR 601; Foran v Wight [1989] HCA 51; 168 CLR 385, at 410-411, per Mason CJ; 419-422, per Brennan J; at 433-434, per Deane J; at 456-457, per Gaudron J; Aust…

Legislation cited in this decision · 2

Civil Procedure Act 2005 (NSW)
1 mention
Suitors’ Fund Act 1951 (NSW)
1 mention

Medium Neutral Citation:	Cooper v Kinsella [2011] NSWCA 45
Hearing dates:	4 February 2011
Decision date:	11 March 2011
Before:	Allsop P at 1; Hodgson JA at 4; Sackville AJA at 67
Decision:	(1) Appeal allowed. (2) Orders below set aside. (3) Judgment for Mr Cooper against the respondents for $133,923. (4) Order that the respondents pay Mr Cooper interest on $133,923 from 1 September 2005 until to-day at prescribed rates. (5) Order that the respondents pay Mr Cooper's costs of the proceedings below. (6) Order that the respondents pay Mr Cooper's costs of the appeal, and that they have a certificate under Suitors' Fund Act 1951 if otherwise eligible. If within fourteen days the parties provide the Court with an agreed calculation of interest up to to-day, the Court will give judgment for that amount (pursuant to order (4) above), to take effect from to-day. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	CONTRACT - Breach - Repudiation - Whether actual breach in the circumstances conveyed repudiation - Whether repudiation accepted - Whether innocent party relieved from performing condition precedent - Application of principle in Peter Turnbull & Co Pty Limited v Mundus Trading Co (Australasia) Pty Limited [1954] HCA 25; (1954) 90 CLR 235. GUARANTEE - Whether contract of guarantee imposed liability greater than that of principal debtor.
Cases Cited:	Amaya v Everest Property Holdings Pty Ltd [2010] NSWCA 315 Asia Television Ltd v Yau's Entertainment Pty Ltd [2003] FCA 720 Austral Standard Cables Pty Ltd v Walker Nominees Pty Ltd (1992) 26 NSWLR 524 Foran v Wight [1989] HCA 51; 168 CLR 385 Holland v Wiltshire (1954) HCA 42; 90 CLR 409 Mahoney v Lindsay (1980) 33 ALR 601 Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235 Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 Vitol SA v Norelf Ltd [1996] AC 800; 3 All ER 193
Category:	Principal judgment
Parties:	Benjamin Robert COOPER (appellant) Ian Anthony KINSELLA (first respondent) Simon STONIER (second respondent) Scott Benjamin WRIGHT (third respondent)
Representation:	Counsel: P BEALE/ E CHRYSOSTOMOU (appellant) G B COLYER (respondents) Solicitors: Mills Oakley Lawyers (appellant) Kemp Strang Lawyers (respondents)
File Number(s):	2008/319361
Decision under appeal	Date of Decision: 2010-03-04 00:00:00 Before: Robison DCJ File Number(s): 4604/2009