Pasdonnay Pty Ltd & Anor v Sds Corporation Ltd

[2005] WASCA 9

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Conditions precedent
3. › Non-fulfilment
4. › Party contributing to non-fulfilment of condition
5. › Whether party disentitled from terminating
6. › Test of material contribution or causation
1. Contract
2. › Misleading and deceptive conduct
3. › Reliance
4. › Whether party relied on representations where protective mechanism in place
5. › Put option securing financial position
1. Practice and Procedure
2. › Pleading
3. › Misleading and deceptive conduct
4. › Whether unpleaded representation may be raised on appeal
5. › Whether case fought on unpleaded basis
1. Practice and Procedure
2. › Costs
3. › Special costs order
4. › Unusual difficulty, complexity or importance
5. › Legal Practice Act 2003 (WA), s 215(2)

Quick Take

A party who causes or contributes to the non-fulfilment of a non-promissory condition precedent is disentitled from terminating the contract for non-fulfilment of that condition, applying a test of material contribution rather than requiring proof of direct causation. Where a party's default prevents a third party from considering whether to give consent required by a condition precedent, the burden on the innocent party is to show it was more probable than not that consent would have been given, not that consent was certain. Section 215(2) of the Legal Practice Act 2003 (WA) is narrower than the former O 66 r 12, being confined to unusual difficulty, complexity or importance, with no residual discretion based on costs actually incurred.