Doris Elvira Henschke & Christine Ann Henschke v Pacific Vision (Aust) Pty Ltd

Doris Elvira Henschke and Christine Ann Henschke (the appellants) brought proceedings against Pacific Vision (Aust) Pty Ltd (the respondent) in the Supreme Court of Queensland. The dispute concerned the respondent's alleged breach of a contract for the sale of land, specifically regarding the respondent's failure to complete the sale by the agreed settlement date. The appellants sought specific performance of the contract or, alternatively, damages for breach of contract.

The primary legal issue before the Court was whether the respondent had validly terminated the contract for sale. This required the Court to determine whether the respondent's notice of termination was effective, which in turn depended on whether the respondent had a right to terminate the contract due to the appellants' alleged failure to comply with a condition precedent, namely the obtaining of finance by a specified date. The Court also considered whether the respondent had waived any right to terminate by its subsequent conduct.

Justice McDonagh found that the condition precedent relating to finance was not a condition precedent to the respondent's obligation to complete the contract, but rather a condition for the appellants' benefit. Consequently, the respondent could not rely on the appellants' failure to obtain finance as a basis for terminating the contract. Furthermore, the Court held that the respondent's actions after the purported termination, including continuing to engage with the appellants regarding settlement, constituted a waiver of any right to terminate that it might have had. The Court concluded that the respondent had breached the contract by wrongfully terminating it.

The Court ordered specific performance of the contract for sale in favour of the appellants, requiring the respondent to complete the sale of the property.