Deverell, K.T. v Peter Johnson Earthmoving Pty Ltd

Re: KEVIN THOMAS DEVERELL
And: PETER JOHNSON EARTHMOVING PTY. LTD.; MORNINGTON INVESTMENTS PTY. LTD. and
PETER JOHNSON
No. T G2 of 1991
FED No. 662
Contracts
(1991) 32 FCR 268

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Pincus(1), Olney(1) and Hill(1) JJ.

CATCHWORDS

Contracts - repudiation on basis of purported underpayment - claim for failure to repay loan payable by instalments - whether right to repayment accelerates - whether damages recoverable for claim in debt.

HEARING

BRISBANE

#DATE 4:11:1991

Counsel for the appellant: Mr K. Read

Solicitors for the appellant: Jennings Elliott

Counsel for the respondents: Mr A.M. Blow

Solicitors for the respondents: Norma Levis and Co.

ORDER

The appeal be allowed in part.

The orders made by Spender J. on 21 December 1990 be varied by substituting "$18,480" for "$32,600.00".

There be no order as to the costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a judgment of a single judge of this Court, given in a case concerning a written contract relating to the carriage of gravel. Under that contract, made in March 1988, the first and second respondents agreed to sell to the appellant a truck and trailer and, in addition, the right to cart gravel and like materials from certain quarries at Mornington in Tasmania. The agreement fixed the price at $70,000, apportioned as to $25,000 for the truck, $10,000 for the trailer and $35,000 for the right to cart; the price was payable on or before 11 March 1988 when property in the truck and trailer was to pass. The agreement was made conditional upon the appellant's obtaining a $35,000 loan from Esanda Limited. What happened was that Esanda Limited bought the truck and trailer from the first respondent for $35,000 and leased it to the appellant; that was treated as satisfaction of the condition.

1. Under clause 6, the second respondent agreed to lend the appellant, upon completion of the agreement, $35,000, payable as to $10,000 on the sale of a certain property and the balance by instalments of $770 per month (on account of both principal and interest) commencing on 11 December 1988. Clause 6 also provided that the loan should bear interest payable monthly in arrears from 11 April 1988 at the rate charged from time to time by the Commonwealth Bank of Australia on overdraft loans.

2. No instalments were paid, but payment of a total sum of $2,996.63 for interest was made, as well as the $10,000.

3. Under clause 7(a) of the agreement, the second respondent agreed to give the appellant priority in the cartage of materials. At the trial, the appellant put forward a case of breach of that provision, but it was not pressed on appeal. Clause 7 also made provision for payment for cartage, in terms set out below.

4. The agreement was entered into as a result of certain statements made by and on behalf…