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Mitano P/L v Hardoin

Mitano P/L v Hardoin

Case [2005] QSC 402 2 December 2005

Breach of Contract

Repudiation & Termination

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SUPREME COURT OF QUEENSLAND

CITATION:	Mitano P/L v Hardoin & Anor [2005] QSC 402
PARTIES:	MITANO PTY LTD ACN 088 387 357 AS TRUSTEE (plaintiff) v JEAN-MICHEL HARDOIN and EVELYNE HARDOIN (defendants)
FILE NO/S:	BS9577 of 2005
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	2 December 2005
DELIVERED AT:	Brisbane
HEARING DATE:	29 and 30 November 2005
JUDGE:	Muir J
ORDER:
CATCHWORDS:	CONTRACTS – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – ELECTION AND RECISSION – LOSS OR WAIVER OF RIGHT TO RESCIND – plaintiff entered into contract to purchase land from defendants – plaintiff breached contract by failing to pay deposit on time – whether election to affirm by statements made by the agent/stakeholder to the plaintiff – whether election to affirm – whether vendor’s agent has authority to make such statements – making of representations by silence – whether acceptance of deposit moneys due under contract could be consistent only with the contract’s continued existence – whether contract contained an implied term concerning non-payment of deposit through no fault of purchaser
Ashdown v Kirk [1999] 2 Qd R 1 Aussie Invest Corp Pty Ltd v Pulcesia Pty Ltd [2005] VSC 362 Balls-Hendley v Ambler (1880) 6 VLR 360 Bot v Ristevski [1981] VR 120 Carr v J A Berriman Pty Ltd (1953) 89 CLR 327 Ciavarella v Balmer (1983) 153 CLR 438 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Ex parte Robertson [1983] 1 Qd R 526 Green v Sommerville (1979) 141 CLR 594 Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2004] 1 AC 715 Hyundai Heavy Industries Co Ltd v Papadopoulos (1980) 1 WLR 1129 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Price v Worwood (1859) 4 H & N 512 Re Ronim Pty Ltd [1999] 2 Qd R 172 Sargent v ASL Developments Ltd (1974) 131 CLR 634 Segal Securities Ltd v Thoseby [1963] 1 QB 887 Tropical Traders Ltd v Goonan (1964) 111 CLR 41
COUNSEL:	T Matthews for the plaintiff D Clothier for the defendants
SOLICITORS:	Egans for the plaintiff McCullough Robertson for the defendants

The proceedings

The central point at issue in these proceedings, commenced on 11 November 2005, by the plaintiff purchaser for specific performance of a contract for the sale and purchase of land dated 8 October 2005 entered into between it and the defendant vendors, is whether the defendants waived the plaintiff’s breach of contract in failing to pay the balance deposit on the due date.
The defendants counterclaim for removal of a caveat lodged in respect of the land by the plaintiff. They also seek a declaration that they are entitled to the deposit paid or payable under the contract and claim the amount of the deposit as a debt.
An expeditious determination of the proceedings is sought as another contract for the sale of the land was entered into by the defendants after their purported termination of the subject contract.…

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

AGLC: Mitano P/L v Hardoin [2005] QSC 402
Case: [2005] QSC 402
Decision Date: 2 December 2005

CaseChat Overview and Summary

In Mitano P/L v Hardoin, the Federal Court considered whether a vendor had waived its right to rescind a contract for the sale of land after the purchaser had breached the contract by failing to pay the deposit on time. The vendor's agent had made representations to the purchaser that could have been interpreted as an election to affirm the contract, and the vendor subsequently accepted monies due under the contract. The Court had to determine whether the vendor's agent had the authority to make such representations and whether the acceptance of the deposit moneys could be consistent only with the contract's continued existence.

The central legal issue was whether the vendor had waived its right to rescind the contract by the conduct of its agent and by accepting monies due under the contract. The Court considered whether the vendor's agent had the authority to make representations that could be interpreted as an election to affirm the contract and whether the acceptance of the deposit moneys could be consistent only with the contract's continued existence. The Court also considered whether the contract contained an implied term concerning non-payment of the deposit through no fault of the purchaser.

The Court held that the vendor had waived its right to rescind the contract. The Court found that the vendor's agent had the authority to make representations that could be interpreted as an election to affirm the contract, and that the acceptance of the deposit moneys could only be consistent with the contract's continued existence. The Court also found that the contract contained an implied term concerning non-payment of the deposit through no fault of the purchaser, which meant that the vendor could not rely on the breach as a reason to terminate the contract.

The Court ordered that the contract was still in force and that the purchaser was required to pay the deposit and complete the sale of the land. The Court also ordered that the vendor was not entitled to terminate the contract for the purchaser's breach.

Orders