Cooper v Ungar

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose from a contract for the sale of land between Harriet Ungar (the vendor) and Reuben Cooper (the purchaser). Cooper defaulted on his obligations under the contract, and Ungar subsequently resold the property at a lower price. Ungar then sued Cooper to recover the deficiency, which was provided for in clause 14 of the contract as liquidated damages. Cooper contended that the vendor's right to resell and recover the deficiency was subject to an implied condition that the resale must occur within a reasonable time, and that this condition had not been met.

The High Court was required to determine whether clause 14 of the contract contained an implied term that the vendor must resell the property within a reasonable time after the purchaser's default. If such a term were implied, the court also had to consider whether the resale, which occurred approximately 17 months after the purchaser's final default, had indeed taken place within a reasonable time. The court considered two possible interpretations of such an implied term: either as a condition precedent to the vendor's power to resell and recover the deficiency, or as an obligation on the vendor to sell within a reasonable time, a breach of which would expose the vendor to a claim for damages by the purchaser.

The Court found that regardless of which interpretation of the implied term was adopted, the facts of the case did not support a finding that the resale had not occurred within a reasonable time. The vendor had made persistent efforts to resell the property, including an auction and subsequent private treaty sales, and the delay was not so unreasonable as to preclude recovery under clause 14. The Court noted that a vendor in such a position faces a dilemma, balancing the risk of selling too quickly against the risk of delaying too long. In this instance, the vendor's efforts were deemed sufficiently diligent, and the purchaser had not established that the resale was too late.

Consequently, the High Court dismissed the appeal. The Court affirmed the judgment of the Supreme Court of New South Wales, upholding the vendor's entitlement to recover the sum of £6,125 as liquidated damages from the defaulting purchaser. The appeal was dismissed with costs.