Highmist P/L v Tricare Ltd

[2005] QCA 357

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Discharge, breach and defences to action for breach
3. › Conditions precedent and subsequent
4. › Subdivision of land
5. › Whether registered plan of subdivision substantially in form attached to contract
6. › Whether minor deviations from contractual tolerances should be excused
7. › Strict compliance with express contractual tolerances required
1. Contract
2. › Discharge, breach and defences to action for breach
3. › Repudiation and non-performance
4. › What amounts to repudiation
5. › Insistence on incorrect interpretation of contract
6. › Whether seeking specific performance based on erroneous construction amounts to repudiation
7. › Whether party willing to accept authoritative exposition of correct interpretation
1. Contract
2. › Discharge, breach and defences to action for breach
3. › Repudiation and non-performance
4. › Election and rescission
5. › Loss or waiver of right to rescind
6. › Affirmation of contract
7. › Whether communication of intention to seek specific performance constituted affirmation
8. › Whether time ceased to be of the essence after affirmation
1. Contract
2. › Discharge, breach and defences to action for breach
3. › Repudiation and non-performance
4. › Readiness, willingness and ability to perform
5. › Whether vendor entitled to call on purchaser to complete where vendor itself not in compliance with contractual obligations

Quick Take

A party seeking specific performance of a contract based on an erroneous interpretation of its terms does not thereby repudiate the contract, provided the party is willing to accept an authoritative exposition of the correct interpretation. Express contractual tolerances for deviation (such as percentage limits on area reduction and distance limits on boundary variation) must be strictly complied with and cannot be excused on the basis that the excess is minor. A vendor who affirms a contract after the purchaser's failure to complete loses the right to rescind for that failure, and time ceases to be of the essence.