Upside Property Group Pty Ltd v Tekin

(2017) 19 BPR 38; [2017] NSWCA 336

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Contract
2. › Anticipatory breach
3. › Damages for loss of bargain
4. › Readiness and willingness to perform
5. › Distinction between condition precedent to cause of action and entitlement to substantial damages
6. › Whether purchaser substantially incapacitated from performance at time of termination
7. › Whether purchaser required to prove on balance of probabilities that it would have completed but for repudiation
1. Valuation
2. › Development land
3. › Evidence of market value
4. › Informal and unaccepted offers to purchase
5. › Whether primary judge erred in giving no significant weight to unaccepted offers
6. › Comparable sales method
1. Appeal
2. › Appellate review of factual findings
3. › Rehearing on the record
4. › Whether appellate court in position to substitute its own conclusion
5. › Supreme Court Act 1970 (NSW), s 75A

Quick Take

In a claim for damages for anticipatory breach of a contract for sale of land, the condition precedent to bringing the action (readiness and willingness) requires only proof of a reasonable prospect of being able to complete — the absence of substantial incapacity. However, recovery of substantial loss of bargain damages requires proof on the balance of probabilities that completion would have occurred but for the repudiation. A plaintiff who satisfies the former but not the latter obtains only nominal damages. Informal and unaccepted offers to purchase property should not be given significant weight in valuation without, at minimum, some basis for concluding the offeror was willing and able to complete unconditionally.