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Highmist Pty Ltd v Tricare Ltd

Highmist Pty Ltd v Tricare Ltd

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Case Copied 23 September 2005 47 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Highmist P/L v Tricare Ltd [2005] QCA 357

PARTIES:

HIGHMIST PTY LTD ACN 073 507 481
(plaintiff/respondent)
v
TRICARE LTD ACN 009 657 345
(defendant/appellant)

FILE NO/S:

Appeal No 3483 of 2005
SC No 6356 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 September 2005

JUDGES:

Jerrard and Keane JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed

2. Appellant to pay the costs of the respondent to be assessed on the standard basis

CATCHWORDS:

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - CONDITIONS - CONDITIONS PRECEDENT AND SUBSEQUENT - where the appellant had contracted to subdivide land and sell part of the subdivision to the respondent - where a contract for the sale of land was subject to, among other things, a condition that the approved plan of subdivision obtained by the appellant should not differ in certain respects from a plan attached to the contract - the boundaries of the actual subdivision were not to vary by more than 20 metres from those on the contract plan - the area of the land to be purchased was not to be reduced by more than three per cent from that area shown on the contract plan - where, having registered a plan of subdivision, the appellant called on the respondent to complete the contract - where the respondent did not tender performance when called upon to do so - where there was unchallenged evidence at trial that the registered plan of subdivision did not accord with the contract plan - whether the minor deviations between the registered plan and the contract plan were material - whether the appellant fulfilled its contractual obligations with respect to the plan of subdivision - whether the appellant was ready, willing and able to complete and entitled to call upon the respondent to do the same

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - ELECTION AND RESCISSION - LOSS OR WAIVER OF RIGHT TO RESCIND - where the appellant called on the respondent to complete the contract - where, when the respondent failed to tender performance as requested, the appellant communicated an intention to seek specific performance of the contract - whether the communication of this intention amounted to an affirmation to keep the contract on foot - whether this communication meant that the appellant lost the right to rescind the contract as a result of the respondent's failure to complete

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - REPUDIATION - WHAT AMOUNTS TO REPUDIATION - where the respondent had insisted that the contract of sale contained an implied term that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] QCA 357
Decision Date: 23 September 2005

CaseChat Overview and Summary

Highmist Pty Ltd sought to appeal against a decision that dismissed its claim against Tricare Ltd for specific performance of a contract for the sale of land. The contract was subject to the appellant subdividing the land and obtaining an approved plan of subdivision. The plan had to conform to a contract plan in certain respects. The boundaries of the actual subdivision were not to vary by more than 20 metres from those on the contract plan, and the area of the land to be purchased was not to be reduced by more than three per cent from that area shown on the contract plan. The trial judge found that the appellant had fulfilled its contractual obligations with respect to the plan of subdivision, and was ready, willing and able to complete and entitled to call upon the respondent to do the same. The appellant argued that the respondent repudiated the contract by insisting that the contract contained an implied term that the land to be transferred should have access to a nearby road. The appellant also argued that it had not lost the right to rescind the contract after calling on the respondent to complete the contract, despite having communicated an intention to seek specific performance.

The court was required to determine whether the minor deviations between the registered plan of subdivision and the contract plan were material. The court also had to decide whether the appellant fulfilled its contractual obligations with respect to the plan of subdivision, and whether it was ready, willing and able to complete and entitled to call upon the respondent to do the same. The court also had to determine whether the communication of the appellant's intention to seek specific performance amounted to an affirmation to keep the contract on foot, and whether this meant that the appellant lost the right to rescind the contract as a result of the respondent's failure to complete. Finally, the court had to decide whether the actions of the respondent amounted to repudiation of the contract because they manifested a willingness to perform only on the basis that the respondent's interpretation of the contract was correct.

The court held that the minor deviations between the registered plan of subdivision and the contract plan were not material. The court found that the appellant had fulfilled its contractual obligations with respect to the plan of subdivision, and was ready, willing and able to complete and entitled to call upon the respondent to do the same. The court held that the communication of the appellant's intention to seek specific performance did not amount to an affirmation to keep the contract on foot. The court found that the appellant had not lost the right to rescind the contract as a result of the respondent's failure to complete. Finally, the court held that the actions of the respondent did not amount to repudiation of the contract, as the appellant was not ready, willing and able to perform the contract. The court dismissed the appeal and ordered that the appellant pay the costs of the respondent.

Orders

Orders of the court

1. Appeal dismissed

2. Appellant to pay the costs of the respondent to be assessed on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Highmist P/L v Tricare Ltd [2005] QCA 357
PARTIES:	HIGHMIST PTY LTD ACN 073 507 481 (plaintiff/respondent) v TRICARE LTD ACN 009 657 345 (defendant/appellant)
FILE NO/S:	Appeal No 3483 of 2005 SC No 6356 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 September 2005
DELIVERED AT:	Brisbane
HEARING DATE:	9 September 2005
JUDGES:	Jerrard and Keane JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal dismissed 2. Appellant to pay the costs of the respondent to be assessed on the standard basis
CATCHWORDS:	CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - CONDITIONS - CONDITIONS PRECEDENT AND SUBSEQUENT - where the appellant had contracted to subdivide land and sell part of the subdivision to the respondent - where a contract for the sale of land was subject to, among other things, a condition that the approved plan of subdivision obtained by the appellant should not differ in certain respects from a plan attached to the contract - the boundaries of the actual subdivision were not to vary by more than 20 metres from those on the contract plan - the area of the land to be purchased was not to be reduced by more than three per cent from that area shown on the contract plan - where, having registered a plan of subdivision, the appellant called on the respondent to complete the contract - where the respondent did not tender performance when called upon to do so - where there was unchallenged evidence at trial that the registered plan of subdivision did not accord with the contract plan - whether the minor deviations between the registered plan and the contract plan were material - whether the appellant fulfilled its contractual obligations with respect to the plan of subdivision - whether the appellant was ready, willing and able to complete and entitled to call upon the respondent to do the same CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - ELECTION AND RESCISSION - LOSS OR WAIVER OF RIGHT TO RESCIND - where the appellant called on the respondent to complete the contract - where, when the respondent failed to tender performance as requested, the appellant communicated an intention to seek specific performance of the contract - whether the communication of this intention amounted to an affirmation to keep the contract on foot - whether this communication meant that the appellant lost the right to rescind the contract as a result of the respondent's failure to complete CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - REPUDIATION - WHAT AMOUNTS TO REPUDIATION - where the respondent had insisted that the contract of sale contained an implied term that…