K & K Real Estate Pty Ltd v Adellos Pty Ltd (In Liquidation) & Anor

K & K Real Estate Pty Ltd (the plaintiff) brought proceedings against Adellos Pty Ltd (in liquidation) and Mr. Anthony Delos (the defendants) in the Supreme Court of New South Wales. The plaintiff sought to recover damages for breach of contract, alleging that the defendants had failed to complete the sale of a property at 140-142 King Street, Sydney, in accordance with the terms of a written contract. The plaintiff claimed that the defendants had repudiated the contract by failing to settle on the agreed date and by subsequently selling the property to a third party.

The central legal issue before the court was whether the defendants' conduct constituted a repudiation of the contract, thereby entitling the plaintiff to terminate the agreement and claim damages. Specifically, the court had to determine if the defendants' failure to settle on the stipulated date, coupled with their subsequent sale of the property, evinced an intention no longer to be bound by the contract. The court also considered whether the plaintiff had accepted any repudiation by the defendants.

Heydon J found that the defendants' failure to settle on the due date, without any valid excuse or extension, amounted to a repudiation of the contract. His Honour reasoned that the defendants' actions demonstrated a clear intention to abandon their contractual obligations. The subsequent sale of the property to another party further solidified this intention. The court applied the principle that a party's conduct can amount to a repudiation if it demonstrates an intention to be no longer bound by the terms of the contract, or an intention to fulfil the contract only in a way that is inconsistent with the other party's rights. The plaintiff's acceptance of this repudiation, by commencing proceedings for damages, was also affirmed.

The court ordered that the plaintiff was entitled to damages for breach of contract, with the quantum to be assessed.