Mullins v Kelly-Corbett

The case of Mullins v Kelly-Corbett involved the appellant, a purchaser, and the respondent, a vendor, who had entered into a contract for the sale of a residential property. The appellant failed to settle on the stipulated date, prompting the respondent to terminate the contract and sell the property to another party. The appellant contended that the respondent had affirmed the contract after an earlier anticipatory breach by the appellant, thereby remaining obligated to be ready, willing, and able to perform. Specifically, the appellant argued that the respondent was not ready, willing, and able to give vacant possession on the settlement date, as required. The central legal issues were whether the respondent was ready, willing, and able to complete the contract on the settlement date, and if the appellant's conduct relieved the respondent of the obligation to provide vacant possession.

The court considered the doctrine of affirmation of contract and the obligations of both parties upon such affirmation. It found that the respondent's actions did not constitute an affirmation of the contract and that the appellant's anticipatory breach did not relieve the respondent of their duty to be ready, willing, and able to complete the transaction. The court also examined the damages clause, determining that the common law measure of damages should apply to the claims under the clause. The court found that the losses claimed by the appellant were not too remote to be recoverable under the contract's terms.

In terms of costs, the primary judge had awarded the respondent costs on an indemnity basis. The court upheld this decision, concluding that the respondent was entitled to indemnity costs due to the appellant's unsuccessful appeal. The appeal was ultimately dismissed, with the appellant ordered to pay the respondent's costs on an indemnity basis.