Heckenberg v Delaforce

[2000] NSWCA 137

CITATION:	Heckenberg anor v Delaforce [2000] NSWCA 137
FILE NUMBER(S):	CA 40257/98
HEARING DATE(S):	17 November 1999
JUDGMENT DATE:	8 June 2000
PARTIES :	Appellant: Marlene Joyce Heckenberg & Casper Leon Heckenberg Respondent: Eric Delaforce
JUDGMENT OF:	Mason P at 1; Meagher JA at 72; Beazley JA at 87

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	ED 5247/93
LOWER COURT JUDICIAL OFFICER :	Simos J

COUNSEL:	Appellant: P Brereton SC Respondent: L Stapleton
SOLICITORS:	Appellant: Budd & Piper (Tweed Heads) by their city agent Carroll & O'Dea Respondent:Priests with McCarron Sork (Port Maquarie) by their city agents Turner Whelan
CATCHWORDS:	Contract - Whether part performance or total failure of consideration - Remedies - Restitution only available if total failure of consideration - Benefit bargained for was not recieved - Benefit received was incidental to contractual obligations
CASES CITED:	Maddocks v DJE Constructions Pty Ltd (1982) 148 CLR 104 Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour, Limited [1943] AC 32 Baltic Shipping Co v Dillon (1993) 176 CLR 344 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Goss v Chilcott [1996] AC 788 United Australia Ltd v Barclays Bank Limited [1941] AC 1 Ciavarella v Balmer (1983)153 CLR 438 Rover International Ltd v Cannon Film Sales Ltd (No 3) [1983] 3 A11 ER 423 Madwood Pty Limited v Heckenberg Holdings Pty Limited (NSW SC (Eq),9 Nov,1988, unreported Holroyd v Marshall (1862) 10 HLC 191 Poole v Hill (1840) 6 M&W 835 Pam v Barbour (1870) 1 VR (L) 136 Layard v Allen (1881) Tarl. E.Brown Pty Limited v Florence [1976]SASR 214
DECISION:	Appeal dismissed with costs.

Marlene Joyce HENCKENBERG and Casper Leon HECKENBERG V Eric DELAFORCE

CONTRACT-WHETHER PART PERFORMANCE OR TOTAL FAILURE OF CONSIDERATION-REMEDIES-RESTITUTION ONLY AVAILABLE IF TOTAL FAILURE OF CONSIDERATION-BENEFIT BARGAINED FOR WAS NOT RECEIVED-BENEFIT RECEIVED WAS INCIDENTAL TO CONTRACTUAL OBLIGATIONS

Facts: The parties entered into a deed whereby the respondent paid $100,000 in return for a 20% interest in a new company to be established by the transfer of assets from two of the appellant’s companies, Port Macquarie Concrete Pty Ltd (“Port Macquarie Concrete”)and Heckenberg Holdings Pty Ltd (“Heckenberg Holdings”). Default provisions in the deed stated that if the appellants were unable to secure the transfer of assets to the new company, the respondent would receive a 20% registered share interest in Port Macquarie Concrete and a 20% interest in a quarry which Heckenberg Holdings had leased.
The respondent paid the $100,000. However, the transfer was not effected, and no interests from the appellant’s two companies were forthcoming.
A second deed was agreed upon. This purported to recite the first deed and provided for the sale of Port Macquarie Concrete and the quarry lease owned by Heckenberg Holdings. This contract remained unperformed as well. Port Macquarie Concrete was eventually sold to another party.
Heckenberg Holdings maintained a full interest in the quarry lease. The appellants formed another company called Wilson River Sand and Gravel Pty Ltd.…