Scott v Ennis-Oakes

The appeal in *Scott v Ennis-Oakes* concerned a dispute between the appellants and the respondent arising from a contract for the sale of land. The respondent sought to rescind the contract, but the appellants did not consent, asserting the contract remained on foot and electing to affirm it rather than terminate and claim loss of bargain damages. The appellants initially sought orders for specific performance. Subsequently, the respondent entered into a Scheme of Arrangement Deed and sought to rescind the contract on this basis, leading the appellants to claim loss of bargain damages.

The Court of Appeal of New South Wales was required to determine whether the contract had ended due to supervening circumstances, and whether the appellants were entitled to loss of bargain damages at the time the respondent terminated the contract by entering into the Scheme of Arrangement.

The Court reasoned that the appellants' election to affirm the contract, rather than terminate and claim damages, meant they were bound by that election. The subsequent entry into the Scheme of Arrangement by the respondent constituted a repudiation of the contract. The Court held that the appellants were entitled to elect to affirm the contract and claim loss of bargain damages at the time of this repudiation. However, the Court found that the appellants had not established that the contract had come to an end due to supervening circumstances.

The appeal was dismissed, and the appellants were ordered to pay the respondent’s costs of the appeal.