Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21

High Court of Australia Barwick C.J. Gibbs, Mason, Jacobs and Murphy JJ. Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 30 Barwick C.J.

The respondent sold land to the appellant under a contract in writing which contained a clause (cl. 25) which required settlement of the transaction by the appellant within fourteen days of the completion of another contract under which the respondent was purchasing the same land from its then registered proprietor. The respondent gave notice to the appellant on 8th October 1974, that completion of that contract was to take place that day and that, consequently, the appellant was due to settle the subject contract on Tuesday, 22nd October 1974. In respect of the completion of the subject contract, time, by its express terms, was of the essence of the contract.

I might observe in passing that there had been difficulties between the respondent and the proprietor of the land in connexion with the completion of the contract between them which had delayed and, from time to time, rendered uncertain settlement of that contract. These circumstances are not relevant to any principal matter in the case, though I shall need to refer to them later in connexion with an alternative submission made on behalf of the appellant.

In its notification of 8th October, the respondent, whilst retaining time as of the essence, gave the appellant the option of settling on any one of the days 21st, 22nd or 23rd October. The appellant did not choose any of these days and did not complete on any one of them. By 23rd October, he therefore would have been in radical breach of his contract with the respondent.

However, on 17th October and 18th October, the respondent's solicitors called the attention of the appellant's solicitors to statements by the appellant that indicated that he did not intend to complete the contract at any of the times indicated by the respondent in its letter of 8th October. The respondent's solicitors in their letter said that if no replies were received to its correspondence—which in truth called for reply—counsel would be briefed on the question whether there was a clear anticipatory repudiation of the contract by the appellant: and that, in the event that counsel's view was in the affirmative, a writ for specific performance would be issued on the following Monday, which was 21st October. A letter from the appellant's solicitors received in the interim, so far from indicating an intention to settle, raised the possibility of setting up misrepresentation inducing the contract. The appellant's solicitors replied in substance that they took this letter as indicating a refusal to settle and that, failing a statement by the respondent to the contrary, the writ would be issued first thing on the Monday morning. To this letter there was no reply. The respondent's anxiety for certainty is understandable. A suit for specific performance was commenced on 21st October 1974. That suit was based on the appellant's anticipatory breach of the contract. But the respondent did not accept it on the basis of a termination of the contract. It treated the contract as still on foot. The writ was sent to the appellant's solicitors under cover of a letter in which it was said that the respondent remained ready, willing and able to settle on any one of the days 21st, 22nd or 23rd October.