Ciavarella v Balmer [1983] HCA 26

High Court of Australia Gibbs C.J. Mason, Wilson, Deane and Dawson JJ. Ciavarella v Balmer [1983] HCA 26

ORDER Appeal dismissed with costs.

Cur. adv. vult.

Aug. 25 Gibbs C.J., Mason, Wilson, Deane and Dawson JJ.

The Court delivered the following written judgment:—

The appellant appeals against an order of the New South Wales Court of Appeal dismissing an appeal from declarations and orders made by Rath J. in an action in the Supreme Court. His Honour found that the respondent had validly terminated a contract for sale between the parties and gave judgment for the respondent for possession of the land the subject of the contract.

The contract was dated 14 January 1978. By the contract, the appellant agreed to buy and the respondent agreed to sell a rice farm in New South Wales known as Yamba Station for $160,000. Of this sum $2,000 was payable by way of deposit. As to the balance, $14,000 was to be paid on or before 3 March 1978, a further $34,000 was to be paid on or before 30 March 1978 and the remaining $110,000 was to be paid by repayment of the principal amount on or before 3 March 1983, with instalments of $3,300 to be paid quarterly from 3 June 1978 by way of interest calculated at the rate of 12 per cent per annum. Title was to pass to the purchaser upon payment of the whole of the principal.

In the events which happened cl. 19(a) of the contract became of critical importance. It provided:

if default by the Purchaser in payment of any instalment of the purchase price or interest hereunder shall continue for four weeks (in this respect time being of the essence) the balance of the purchase price then owing with accrued interest shall immediately without notice to the Purchaser become due and payable irrespective of the transfer of title.

At all material times the respondent claimed that the appellant had defaulted in the payment of the instalment of interest due on 3 June 1979 and that this default continued for four weeks. By letter dated 20 July 1979 the respondent's solicitor informed the appellant's solicitors that the appellant was in breach of cl. 19(a) by failing to pay the instalment on or before 1 July 1979 and called up the balance of principal and interest. By statement of claim filed in the Supreme Court on 17 October 1979 the respondent sought to recover the balance of the purchase price and interest, and by an amendment made in November 1979 he claimed also moneys owing under a contract between the parties for the sale and purchase of plant. On 13 December 1979 the appellant filed a defence and cross-claim. Although these proceedings were not further pursued, they were kept on foot.