Fred IT Group Pty Ltd v Corum Systems Pty Ltd

[2024] VSCA 176

Victorian Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Breach of contract
3. › Once and for all obligations
4. › Whether giving late performance of a once-and-for-all obligation constitutes a further breach
5. › Whether late notice of Change of Control was a separate breach
1. Limitation of Actions
2. › Postponement of limitation period
3. › Fraudulent concealment
4. › Section 27(b) Limitation of Actions Act 1958 (Vic)
5. › Whether right of action concealed by fraud of defendant
6. › Whether wilful blindness sufficient to establish unconscionable concealment
7. › Whether s 27(b) applies where concealment begins after limitation period has commenced
1. Trusts
2. › Unit trusts
3. › Construction of trust deed
4. › Distribution of income
5. › Whether former unitholder entitled to distribution of income for trust year in which it ceased to hold units

Quick Take

Where a contractual obligation is characterised as 'once and for all', late performance cannot be relied upon as a separate breach to circumvent a limitation defence. Establishing fraudulent concealment under s 27(b) requires proof of consciousness of wrongdoing, which cannot be established where the defendant honestly believed no breach had occurred.