Fuller v Albert (No 2)

The Full Court of the Supreme Court of New South Wales considered an application by the Alberts to reopen an appeal concerning a dispute with Mr Fuller. The core of the dispute involved the interpretation and performance of contractual obligations, particularly in relation to a shared purpose.

The legal issues before the Court included whether the appeal had been determined on a ground not pleaded at trial, whether an implied general obligation of cooperation in contract had been found, and whether an order for specific performance could be made without proof of an actual breach, based on a reasonable apprehension of breach. The Court was also required to determine if its reasons for rejecting contentions of abandonment and unilateral release were adequate.

The Court found that the particular contractual terms pleaded by the parties, which encompassed the essence of cooperation towards a stated purpose, were the basis of its decision, rather than an implied general obligation. It clarified that an order for specific performance does not necessitate proof of an actual breach, but can be supported by a sufficiently reasonable apprehension of breach. Furthermore, the Court held that its reasons for rejecting the arguments of abandonment and unilateral release were adequate, as they referred to and rejected the matters relied upon by the parties, thereby sufficiently explaining the conclusion reached.

The Court granted the Alberts leave to file an Amended Notice of Motion, and ordered that parties could file written submissions regarding costs and the remission of proceedings. However, the Amended Notice of Motion was otherwise dismissed with costs.