Slade v Shepard

Slade (the plaintiff) brought proceedings against Shepard (the defendant) in the District Court of New South Wales, alleging that the defendant had breached a contract for the sale of a property. The plaintiff sought specific performance of the contract, or alternatively, damages for breach of contract. The defendant denied the alleged breach and counterclaimed for a declaration that the contract had been validly terminated.

The central legal issue before the court was whether the defendant had validly terminated the contract for the sale of the property. This required the court to determine whether the plaintiff had failed to comply with a condition precedent to settlement, specifically the obtaining of a satisfactory valuation of the property by a specified date. The court also had to consider whether, if there was a breach by the plaintiff, the defendant's subsequent conduct amounted to a waiver of that breach.

Judge Altobelli found that the plaintiff had not satisfied the condition precedent within the stipulated timeframe. The court reasoned that the contractual obligation to obtain a satisfactory valuation was a condition precedent to settlement, and the plaintiff's failure to do so entitled the defendant to terminate the contract. The court rejected the plaintiff's argument that the defendant had waived the breach, finding that the defendant's actions were consistent with asserting their right to terminate rather than an intention to affirm the contract.

Consequently, the court dismissed the plaintiff's claim for specific performance and damages, and granted the defendant's counterclaim for a declaration that the contract had been validly terminated.