Sekler v Kim Carroll Investments Pty Ltd

In the matter of Sekler v Kim Carroll Investments Pty Ltd, the respondent, Kim Carroll Investments Pty Ltd, brought proceedings against the applicant, Sekler, in the Supreme Court of New South Wales, seeking to terminate a contract for the sale of residential property on the basis of a breach of a special condition in the contract. The property was intended to be used as the site for a business, which was to be the subject of a separate contract between the applicant and a related company of the respondent. The contract contained a special condition whereby the respondent warranted that the related company would enter into an agreement with the applicant for the sale of the business to the applicant. The applicant failed to enter into such an agreement, leading the respondent to seek termination of the contract for the sale of the property.

The court was required to determine whether the special condition in the contract was an essential term giving rise to an entitlement to terminate in the event of a breach. The court considered whether the breach by the applicant was such as to deprive the respondent of substantially the whole benefit of the contract. The court also needed to decide whether the respondent was entitled to terminate the contract or whether it should be ordered to specifically perform the contract.

The court found that the special condition was an essential term of the contract, as it was crucial to the applicant’s ability to use the property for the intended business. The breach by the applicant deprived the respondent of substantially the whole benefit of the contract. The court held that the respondent was entitled to terminate the contract due to the applicant’s breach of the special condition. The court ordered the contract to be terminated and awarded the respondent damages for breach of contract.