Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HEYDON AND CRENNAN JJ

KOOMPAHTOO LOCAL ABORIGINAL LAND

COUNCIL & ANOR APPELLANTS

AND

SANPINE PTY LIMITED & ANOR RESPONDENTS

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited

[2007] HCA 61

13 December 2007

S221/2007

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 2 November 2006 and, in their place, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation

B A J Coles QC with G A Sirtes for the appellants (instructed by Bartier Perry Solicitors)

T S Hale SC with A M Mitchelmore for the first respondent (instructed by Solari Legal)

No appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited

Contract – Repudiation – First respondent was held by the trial judge to have grossly departed from the terms of a contract with the first appellant – First appellant purported to accept a repudiation of that contract – Difference between renunciation of a contract, where a party evinces an inability or unwillingness to render substantial performance of a contract, and repudiation, in the form of a breach justifying termination – Classification of contractual terms for the purpose of determining the consequences of a breach – Whether case was one of breach of a condition or sufficiently serious breach of an intermediate term – Whether breach went to root of contract – Relevance of adequacy of damages as a remedy – Relevance of failure to complain of breaches.

Contract – Termination for breach – Governing principles – Whether class of intermediate or innominate terms should be recognised.