R & A Cab Co Pty Ltd v Kotzman

[2008] VSCA 68

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Repudiation
3. › Whether conduct amounts to repudiation
4. › Letter asserting offsetting claim against balance of settlement monies
5. › Whether proposal to negotiate manner of payment constitutes unequivocal refusal to perform
6. › Whether proposal to renegotiate contract implies repudiation
1. Contract
2. › Repudiation
3. › Honest mistake or misapprehension
4. › Whether assertion of non-existent equitable right of set-off constitutes repudiation
5. › Relevance of bona fide but erroneous belief in right of set-off
6. › Whether aggrieved party should correct defaulting party's error
1. Contract
2. › Termination
3. › Time not of the essence
4. › Delay in performance
5. › Whether delay in payment of small balance of settlement sum amounted to repudiation
6. › Whether notice requiring performance within reasonable time was required before termination
1. Contract
2. › Compromise and settlement
3. › Deed of settlement
4. › Enforcement by permanent stay of proceedings
5. › Whether settlement remained on foot where balance unpaid

Quick Take

A party's assertion of a bona fide but erroneous right of set-off against a small outstanding balance under a deed of settlement, accompanied by express affirmation of the contract and an invitation to discuss the manner of payment, does not constitute repudiation of the contract. A proposal to renegotiate a contract does not necessarily imply repudiation of the existing contract. Where time is not of the essence and the defaulting party has substantially performed, the aggrieved party must give notice requiring performance within a reasonable time before purporting to terminate.