United Petroleum Pty Ltd v 7-Eleven Stores Pty Ltd & Anor

[2012] QCA 172

Queensland Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Construction
3. › Contractual notice provisions
4. › Content requirements for notice of avoidance
5. › Whether notice must state ground of avoidance or merely election to avoid
6. › Sub-lease incorporating head lease terms mutatis mutandis
1. Contract
2. › Discharge, breach and defences to action for breach
3. › Termination
4. › Contractual right of avoidance
5. › Distinction between common law termination for breach and contractual right of avoidance
6. › Whether Shepherd v Felt & Textiles principle applies to contractual avoidance provisions
1. Practice and Procedure
2. › Pleading
3. › Amendment of pleadings
4. › Late amendment on second day of trial
5. › Discretion to refuse amendment
6. › Relevant considerations including delay, prejudice, and forensic decisions
7. › Uniform Civil Procedure Rules 1999 (Qld), rr 5(1), 149(1), 150(4)
1. Practice and Procedure
2. › Pleading
3. › Incorporation of documents by reference
4. › Whether general incorporation of contract in pleading sufficient to raise specific contractual provision
5. › Uniform Civil Procedure Rules 1999 (Qld), rr 149(1), 150(4)

Quick Take

A contractual right of avoidance with prescribed notice requirements must be exercised in strict compliance with those requirements, including as to the content of the notice. The common law principle that an innocent party may justify termination on a ground other than the ground assigned (Shepherd v Felt & Textiles) does not apply to contractual avoidance provisions with their own form and content requirements. General incorporation of a contract in a pleading does not satisfy the requirement to plead specific material facts relied upon.