Almond Investors Limited v Kualitree Nursery Pty Limited & Anor

[2011] NSWCA 198

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Contract
2. › Construction
3. › Objective approach to contractual interpretation
4. › Factual matrix
5. › Whether contract required trees to meet specification by June 2007 or by date of actual delivery
1. Contract
2. › Termination
3. › Repudiation
4. › Anticipatory breach
5. › Renunciation
6. › Whether party evinced inability or unwillingness to perform contractual obligations according to their terms
1. Contract
2. › Termination
3. › Repudiation
4. › Right to terminate where terminating party in breach of non-essential term
5. › Whether breach of non-essential term precludes termination for anticipatory breach by other party
1. Contract
2. › Termination
3. › Election to affirm
4. › Whether negotiations for substituted performance constitute affirmation
5. › Whether delay in exercising right to terminate amounts to election to affirm

Quick Take

A party in breach of a non-essential term of a contract is not precluded from terminating for the other party's anticipatory breach or renunciation, provided the terminating party remains willing to perform the contract on its proper interpretation. Participation in negotiations for a compromise agreement does not constitute an election to affirm the contract; once negotiations fail, the right to terminate for renunciation remains available. The question whether the DTR Nominees requirement of willingness to perform or Deane J's broader view in Foran v Wight is correct was left open.