National Engineering Pty Ltd v Chilco Enterprises Pty Ltd

NEW SOUTH WALES COURT OF APPEAL

CITATION:      National Engineering Pty Limited v Chilco Enterprises Pty Limited t/as Trojan Contracting [2001]  NSWCA 291 revised - 2/10/2001

FILE NUMBER(S):
41044/99

HEARING DATE(S):               30/08/01

JUDGMENT DATE: 07/09/2001

PARTIES:
National Engineering Pty Limited v Chilco Enterprises Pty Limited t/as Trojan Contracting

JUDGMENT OF:       Heydon JA Hodgson JA Ipp AJA   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          2258/97

LOWER COURT JUDICIAL OFFICER:     Windeyer J

COUNSEL:
M S Willmott (Appellant)
D J Cochrane (Respondent)

SOLICITORS:
Philip Boyce & Associates (Appellant)
Larry Noble & Associates (Respondent)

CATCHWORDS:
CONTRACT - Construction of terms - Breach and anticipatory breach - whether party repudiated contract by indicating a firm intention of unwillingness to perform - whether term breached where no reasonable time given for performance - whether party committed anticipatory breach by being wholly and finally unable to perform - no breach or anticipatory breach established - appeal dismissed.  PROCEDURE - splitting of issues - need to define parameters of hearing limited to liability - need to prove that useful purpose will be served by enquiry as to damages.  D

LEGISLATION CITED:

DECISION:
(1) Appeal dismissed (2) Appellant to pay the respondent's costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41044/99

ED 2258/97

HEYDON JA
HODGSON JA
IPP AJA

Friday, 7 September 2001

NATIONAL ENGINEERING PTY LIMITED v CHILCO ENTERPRISES PTY LIMITED t/a TROJAN CONTRACTING

Facts:
The appellant and respondent entered into a contract for the hire of a crane to assist in the construction of the Olympic Stadium at Homebush.  The crane was to be a Demag CC4800 or equivalent, which was a large and heavy machine. 

After entering into the contract and paying a deposit the appellant formed the view that the respondent would not be able to meet its obligations under the contract and, on 25 March 1997, terminated the contract.  The appellant then commenced action against the respondent claiming that it was entitled to terminate the contract on the basis of the respondent’s breaches or anticipatory breaches of the contract. 

It was argued by the appellant that the respondent had failed to give assurances that it was able to supply the crane as required and that it later became clear that the respondent would not be able to supply the crane or any equivalent, it was argued that by these actions the respondent repudiated and/or committed anticipatory breaches of the contract. 

HELD
Dismissing the appeal.

1. Per Ipp AJA, Heydon JA and Hodgson JA agreeing

   In relation to the alleged repudiation, the respondent’s facsimile of 24 March 1997, containing an assertion that a CC2600 was an equivalent crane.  The facsimile was merely a step in the further negotiations surrounding the supply of the crane and it did not indicate that the respondent was unwilling to perform the contract according to its terms.  As a result there was no repudiation and the appellant’s argument on this ground fails. 

   DTR Nominees Pty Limited v Mona Homes Pty Limited (1978) 138 CLR…