Upside Property Group Pty Ltd v Tekin

Upside Property Group Pty Ltd (the vendor) and Tekin (the purchaser) were parties to a contract for the sale of development land. The vendor repudiated the contract, and the purchaser elected to terminate and commenced an action for damages for loss of bargain. The appeal concerned whether the purchaser had satisfied the requirement of being not substantially incapacitated from performance at the time of termination, and whether the primary judge had erred in formulating this test. A further issue was whether the purchaser was required to prove on the balance of probabilities that it would have proceeded to completion but for the repudiation. The appeal was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine whether the primary judge had correctly applied the legal principles relating to anticipatory breach of a contract for sale. Specifically, the court had to consider the purchaser's obligation to demonstrate readiness and willingness to perform its obligations under the contract at the time of termination, and the standard of proof required for this demonstration. The court also considered whether the primary judge had erred in the weight given to evidence of informal and unaccepted offers concerning the valuation of the development land.

The Court of Appeal held that the primary judge had not erred in formulating the test for readiness and willingness, nor in concluding that the purchaser had satisfied this requirement. The court affirmed that a purchaser need not prove on the balance of probabilities that it would have completed the purchase but for the vendor's repudiation; rather, it is sufficient to show that the purchaser was not substantially incapacitated from performing its obligations. Regarding the valuation evidence, the court found no error in the primary judge’s assessment of the weight to be given to informal offers.

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