Umbers v Kelson

[2010] VSCA 227

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Sale of business
3. › Subject to finance clause
4. › Termination
5. › Written notice ending contract
6. › Requirements of valid notice of termination
7. › Whether letter requesting extension of finance approval date and offering vendors option to treat letter as notice ending contract constituted valid written notice ending contract
1. Contract
2. › Termination
3. › Notice of termination
4. › Construction of notice
5. › Requirement that notice be clear and unequivocal
6. › Whether ambiguous notice effective to terminate
1. Appeal
2. › Appeal from Magistrates' Court to Trial Division
3. › Whether appellate court may uphold decision on alternative basis not argued below
4. › Whether issue of construction of notice could be determined on appeal where not specifically pleaded

Quick Take

A letter from a purchaser's solicitors stating 'you may treat this letter as written notice ending the contract' does not itself constitute a written notice ending the contract, because it leaves the decision whether to end the contract in the hands of the recipient rather than unequivocally terminating it. A notice that is capable of bearing two meanings — one terminating the contract and one merely offering the recipient the option to do so — is ambiguous and cannot operate as a valid notice of termination.