Fair Trading Tribunal New South Wales CITATION: Mirosevich v Haddad & Haddad [2000] NSWFTT 4 DIVISION: Home Building Division PARTIES: APPLICANT: Mirosevich RESPONDENT: Haddad & Haddad FILE NUMBER: BU 1999/1310 HEARING DATES: 29/2/00; 1/3/00 & 2/3/00 SUBMISSIONS CLOSED: 22/03/2000 DATE OF DECISION: 27/05/2000 BEFORE: Mr J Gallagher Senior Member - Ms EJ Grinston Member LEGISLATION CITED : Home Building Act 1989 - ss89A Vitol SA v Norelf Ltd (1994) 4 All ER 109 at 114 Carr v JA Berriman Pty Ltd (1953) 89 CLR 327 at 351-2 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 at 658 CASES CITED: Fercometal Sarl v Mediterranean Shipping Co SA (1989) AC788 Ross T Smyth and Co Ltd v TD Bailey and Son and Co (1940) 3 All ER 60 at 72 Lunar Park (NSW) Ltd v Trainways Advertising Pty Ltd (1938) 61 CLR 286 Bowes v Chaleyer (1923) 32 CLR 159 CATCHWORDS: Building dispute - purported repudiation of the building contract - purported breach of contract MATTER FOR DECISION: Application under s89A of Home Building Act 1989 REPRESENTATION: APPLICANT: Ms E Olsson of Counsel RESPONDENT: Mr T Davie of Counsel ORDERS: 1. The Tribunal determines that the Applicant repudiated the Contract dated June 1998 between the parties and the Respondents accepted that repudiation and terminated the Contract. Reasons for Decision: Background 1 On 2 June 1998, Mirosevich ("Applicant") entered into a building agreement with Haddad and Haddad ("Respondents") for the construction of a home on their property at ..., Castle Hill. It is not in dispute that work commenced on 25 May 1998 with the demolition of an existing house on the property. As work proceeded over the next few months, relations between the parties became strained, deteriorating to a point where the Respondents' former solicitors, Kalmath Lawyers, wrote on 19 November 1998 to the Applicant alleging he was in breach of the building agreement due to various acts or omissions listed in that letter. The Applicant's former solicitors, Tillyard & Callanan, replied to that letter on 2 December 1998 denying any breach by the Applicant. On the same date, the Applicant signed a Notice of Suspension of Works and a Notice of Extension of Time prepared by his solicitors and these were subsequently served on the Respondents. Further correspondence ensued between the parties' solicitors culminating in a letter dated 10 March 1999 from the Respondents' former solicitors to the Applicant's former solicitors advising that the Respondents regarded the Applicant as having repudiated the building agreement and that the Applicant was no longer authorised to enter the Respondents' property or to perform any further work on the property. Subsequently, a letter dated 18 March 1999 was sent to the Applicant's former solicitors by the Respondents' present solicitors, Mullaly and Mylott, informing them that the Applicant had repudiated the building agreement and that the Respondents had accepted that repudiation as terminating the agreement and had therefore engaged alternative builders to complete the building works. 2 On 14 May 1999, the Applicant filed an application with this Tribunal seeking an order for $118,400.00 from the Respondents for damages for breach of contract. The application included an alternative claim on the basis of unjust enrichment for reasonable remuneration for the work performed by the Applicant. On 22 September 1999, the Respondents filed an answer to the application and made a cross-claim for the cost of rectification of building work performed by the Applicant, the difference between the contract price and the final cost to complete the work, and other damages. The amounts were not quantified and were to be advised at a later date. 3 On 9 February 2000, the Applicant filed amended details of claim. The quantum of damages sought was not changed. During the course of the hearing, the Respondents filed particulars of their cross-claim, which came to a total of $69,627.00. Issues 4 Counsel for both parties agreed that the most sensible way to proceed in this matter was to first determine the contractual issues and to hold over any consideration of the question of damages and quantum. The evidence produced and the submissions made proceeded on that basis and these reasons are restricted to a consideration of the contractual issues, that is, the circumstances in which the building agreement ("Contract") was relevantly breached and terminated. 5 It was the contention of each party that it was entitled to terminate the Contract on the basis of the other's repudiatory breach. The key issues for present determination, therefore, are as follows: a) Which party repudiated the contract by breach. b) Which party accepted that repudiation and terminated the contract. Preliminary Matters 6 It is convenient to set out here in detail some of the clauses of the Contract. Clause 9 was headed "Progress Payments" and was as follows: "WITH A LENDING AUTHORITY The Owners shall direct the Lending Authority to pay to the Contractor Progress Claims outlined in the Progress Payments Schedule 5 of this Agreement within five (5) working days after being notified in writing by the Contractor that the stages of work have been satisfactorily completed. It is acknowledged the Owner shall always remain responsible for the payment of such Progress Claims. The Contractor acknowledges that if an inspection is made which finds the Progress Claim premature, then the Contractor will pay for the cost (if any) of such inspection. WHERE NO LENDING AUTHORITY The Owner shall pay the Contract Price by Progress Payments outlined in the Progress Payments Schedule 5 of this Agreement within five (5) working days after being notified in writing by the Contractor that the stages of work have been satisfactorily completed. The Owner shall deposit the Contract Price into a joint account in the name of the Owner, with the Owner receiving interest on the account, but with the Contractor as joint signatory." "Progress Claim" was defined in clause 2 to mean "a written claim prepared by the Contractor and given to the Owner stating the value of work done and material supplied to that date". Schedule 5 of the contract was headed "Clause 9 Progress Payments" and, apart from recording a deposit of $5,000.00, recorded the following stages of work: "1. Demolition -$20,000.00 2. Footings $45,000.00 3. Frame $90,000.00 4. Roof tiles $80,000.00 5. Kitchen $60,000.00 6. Handover $12,000.00" Clause 17 was headed "Termination of Contract by Owner" and was as follows: "The Owner may, subject to this following, end this Agreement if the Contractor: (a) becomes bankrupt or executes a deed of Assignment of arrangement or makes any Composition for the benefit of creditors; or, (b) goes into liquidation, either voluntary or compulsory, or has a Receiver of Official Manager appointed; or, (c) fails to proceed with the Building Works with all due diligence; or, (d) fails to proceed with the Building Works in a competent and workmanlike manner; or, (e) without reasonable cause suspends the Building Work before Practical Completion; or, (f) refuses or neglects to comply with any obligations under this Agreement; or, (g) fails to remove or remedy any defective work (as directed by the warranty insurer) within the time allowed; THEN the Owner must give the Contractor a notice in writing: A. Specifying the default; B. Requiring it to be rectified within ten (10) days or else the Owner may terminate this Agreement after that ten (10) day period by serving a Notice of Determination upon the Contractor." Clause 18 was headed "Termination of Contract by Contractor" and was as follows: "The Contractor may end this Agreement, subject to the following, if the Owner: (a) fails to pay a Progress Claim or Variation within ten (10) working days of the date on which it becomes due and payable; or, (b) becomes bankrupt or executes a Deed of Assignment or Arrangement or makes a Composition for the benefit or creditors; or, (c) goes into liquidation (voluntary or compulsory) or has a receiver and/or Official Manager appointed; or, (d) fails to give adequate instructions or directions; or, (e) commits a breach of the warranties referred to in Clause 4; or, (f) fails to execute a variation; or, (g) enters into occupation (actual or constructive) without the Contractors consent or attempts to take control of the Building Works THEN the Contractor may stop the Building Works AND serve a Notice of Suspension of Works upon the Owner: A. Specifying the default; B. Requiring it to be rectified; and C. Stating that this Agreement may be terminated if the default is not rectified within ten (10) Working days. At the end of ten (10) Working days, if the Owners default has not been rectified, the Contractor may serve a Notice of Determination, ending the Agreement and requiring the Owner to pay the following amounts within five (5) Working days: (i) Cost of Building Works to date not already paid and Builders Margin; and (ii) Costs of quitting the Land." 7 It is not in dispute that the Applicant received the deposit of $5,000.00 and rendered invoices for the amounts shown above for stages 1, 2 and 3 for which he received payment. The dates when those payments were made were the subject of some evidence and submissions by the Applicant concerning extensions of time under the Contract. The relevance of those matters will be discussed later. 8 On 12 November 1998, the Applicant rendered an invoice for the sum of $80,000.00 in respect of stage 4 of the work "roof tiles"( Exhibit A2, annexure "M" ). The question of whether the roof tiling was satisfactorily completed for the purposes of clause 9 of the Contract was an issue in dispute between the parties. Evidence on this question was given by the Applicant and by his expert witness, Mr Cornish. Photographic evidence of the roof tiling work was submitted by the Respondents (Exhibit R1). The relevance of this evidence is discussed later. Whatever the position concerning completion as at 12 November 1998, it was not in dispute that the sub-contractor, Monier Roofing, subsequently attended the site in February 1999 and fixed the ridge cappings in place. Its account totalled $10,642.00, which was paid by the Applicant. It is also not in dispute that, after receipt of the invoice for $80,000.00, the Respondents signed a document entitled "Borrowers Request for Progress Payments" (Exhibit A2, annexure "N"), which was then passed to the Respondents' lending authority, Westpac Banking Corporation. Further, it is common ground that the Respondents subsequently wrote to the bank on 18 November requesting the bank to stop payment of the $80,000.00 (Exhibit A3, annexure "I"). That letter went on to say: "The matter is at present with the hands of my Lawyer, who is preparing a letter of termination of contract. Until then, no further payment would be made or sign for. (the contract is closed for now.)" The invoice for $80,000.00 was never in fact paid. 9 As already noted, on 2 December 1998 the Applicant signed a Notice of Suspension of Works, which was subsequently served on the Respondents (Exhibit A2, annexure "Q"). This notice was said to be given pursuant to clause 18 of the Contract and stated that the Respondents had failed to pay the "Progress Claim" of 12 November 1998 for $80,000.00 and a "Variation Claim" dated 8 September for $14,400.89. The notice advised that if the default was not rectified by payment of the total sum of $94.400.89 within 10 working days after service of the notice, the Applicant "may terminate the Contract". The notice also advised that the Applicant had "stopped the Building Works". The Applicant's written evidence was that he stopped the work on 17 November 1998 following a telephone conversation with Mr. Haddad when he was told that he would be receiving a letter from their solicitors, and also because he was still awaiting payment of the $80,000.00 (Exhibit A2, paragraphs 39 and 40). The conversation as deposed to by the Applicant was denied in the sworn statement of Mr. Haddad (Exhibit R8, paragraph 2). 10 The parties were in dispute about what work, if any, was in fact done by the Applicant between the dates of 12 November 1998 and 11 February 1999 (the date when Monier Roofing was paid its account). In response to questions from the Tribunal, the Applicant said that the "roof guard would have been taken off "after 12 November 1999 and that in February the roof ridge capping was cemented on. He conceded that he did not do any work himself after 2 December (the date of the Notice of Suspension of Works) but said that he went back to the site on occasions to check that the property was secure and not being vandalised. In response to further questions from Ms. Olsson, the Applicant stated that apart from the ridge capping by Monier Roofing there had also been some lead flashing placed by a plumber between the dates of 12 November 1998 and 11 February 1999. He also advised that he attended the site to inspect both sub-contractors' work. 11 In addition to the above, the Applicant gave evidence that from 12 November 1998 he had been attempting to arrange a meeting between the Respondents and the suppliers of the kitchen. He deposed that a meeting had been arranged at the property on 16 November 1998 but the Respondents had failed to attend. He attested that a subsequent meeting was arranged for 17 November 1998 but again the Respondents failed to attend. He described this as an additional factor leading to his decision to stop work on the property (Exhibit A2, paragraphs 36-40). Mr. Haddad denied in his sworn statement that there was any discussion about the kitchen on 12 November 1998 and stated that no appointment had been made with the kitchen subcontractors on 16 and 17 November 1998 (Exhibit R8, paragraphs 36-39). During cross-examination, the Applicant repeated his claim that he had been waiting for the site meeting with the kitchen people on the above dates. He conceded, however, that he was not suggesting that there was absolutely nothing else he could do on those dates. Mr. Haddad during cross-examination by Ms. Olsson repeated his denial that the meetings with the kitchen people had ever been arranged. The import of these issues will be discussed later. Submissions 12 Written submissions were made by Ms. Olsson and Mr. Davie and each of them also made a written response to the other's submissions. The essential thrust of Ms. Olsson's submissions are contained in paragraphs 8-10 of the findings she submitted the Tribunal should make. First, she argued that the Applicant was entitled to submit the progress claim for stage 4 because Monier Roofing "had installed roof tiles within the meaning of the progress payment schedule of the contract". Secondly, she submitted that the Respondents had repudiated the Contract by the following conduct: "(i) failing to give the Applicant adequate or any instructions with respect to tiles and kitchen selections in November 1998; (ii) he indicated to a third party (bank) that the Contract was "closed for now" and that his lawyer was preparing "a letter of termination"; (iii) by refusing to direct the lending authority to process progress claim 4 (roof tiles); (iv) by refusing permission for the Applicant to attend the site (10th March 1999); (v) by engaging another builder and giving him exclusive possession of the site (10th March 1999)." Thirdly, she maintained that the Applicant "expressly accepted the repudiation by commencing legal proceedings and in the details of claim form filed with the Tribunal, pleading an acceptance". 13 Mr. Davie's submissions can also be summarised as threefold. First, he made various submissions directed to the argument that the submission of the invoice for $80,000.00 was not a valid progress claim in accordance with Clause 9 on the Contract and there was therefore no breach by the Respondents. His second argument was that, even if there had been a breach, it was not repudiatory in that "the failure to pay one instalment, in circumstances where the work the subject of the relevant stage was not completed, would not ordinarily be regarded as repudiatory". He claimed that there was no evidence to suggest that the Respondents would not have paid the claim "if it had been presented in the proper manner after completion of the roof tiles". In further support of this argument, he submitted that if the Applicant's "failure to continue to carry out work on the site constitutes a repudiation, then the respondents would be excused further obligations under the Contract". The third bracket of his submissions was that, even if there had been a repudiatory breach by the Respondents, the Applicant had never expressly accepted the repudiation and elected to treat the Contract as at an end. In support of this, he referred to the Notice of Suspension of Works dated 2 December 1998 and a Notice of Extension of Time of the same date, both of which had been signed by the Applicant and served on the Respondents. He argued that these notices "constituted unequivocal affirmations of the Contract". Finally, he pointed to the further work carried out on the property in February 1999 by the sub-contractor, Monier Roofing, and argued that this could only have been "pursuant to the Contract". Discussion and findings Assuming the Respondents' conduct gave the Applicant the right to terminate the Contract, did he do so? 14 Clearly the turning point in the relationship between the parties in this matter was the submission of the $80,000.00 invoice on 12 November 1998 and the circumstances surrounding its non-payment. While evidence about late payments of the invoices relating to stages 1, 2, and 3 was adduced and Ms. Olsson argued that those late payments were repudiatory conduct by the Respondents, she conceded in her oral submissions that the Applicant did not act on those and did not exercise any rights he made have had in respect of them. A good deal of evidence was canvassed during the proceedings concerning the stage the roof tiling work had reached when the $80,000.00 invoice was submitted. A similar amount of evidence was forthcoming in respect of the circumstances surrounding the submission of the invoice to Westpac Banking Corporation and the Respondents' instructions to that bank to stop payment of the invoice. Both counsel made detailed submissions about these matters and about the form of the claim and the interpretation of Clause 9 of the Contract. While acknowledging the detail of that evidence and those submissions, we do not think it is necessary to come to any conclusion about those matters. 15 The reason for this is that we agree with Mr. Davie's submission that, even if there had been a repudiatory breach by the Respondents, the Applicant did not accept that repudiation and his subsequent conduct did not communicate any election or decision to terminate the Contract. 16 The clear facts are that on 2 December 1998, the Applicant signed a Notice of Suspension of Works and a Notice of Extension of Time, both of which were served on the Respondents. On the same date, the Applicant's former solicitors, Tillyard and Callanan, wrote to the Respondents' former solicitors, Kalmath Lawyers, denying their claim in a letter of 19 November 1998 that the Applicant was in breach of contract, and setting out in detail his claim for extensions of time under the Contract ( Exhibit A2, annexure "P" ). The letter summarised the extensions as follows: "As at 2 December 1998, the date of practical completion is 28 December 1998. That date will be extended by one working day for every working day that your clients fail to pay our clients Progress Claim dated 12 November 1998". Finally, when responding to the Respondents' solicitors claims in respect of failure to carry out certain works in accordance with the Contract, the letter advised that two of the items "represent uncompleted work at this stage of construction". We agree with Mr. Davie's submission that the notices "constituted unequivocal affirmations of the Contract". Furthermore, the letter from the Applicant's solicitors leaves us in no doubt that the Applicant's legal advisers were treating the Contract as still in existence. 17 Acceptance of a repudiatory breach can be by words or conduct but such words or conduct must make it plain that the innocent party is treating the Contract as at an end – Vitol SA v Norelf Ltd (1994) 4 All ER 109 at 114. The election to treat the Contract as at an end must be unambiguous – Carr v JA Berriman Pty Ltd (1953) 89 CLR 327 at 351-2. While we make no finding that the Respondents were in repudiatory breach of the Contract, we do make a finding that, assuming such repudiatory breach, the Applicant did not accept that repudiation by his words or conduct and made no unambiguous decision to treat the Contract as at an end. No subsequent words or conduct on the part of the Applicant , moreover, suggest that he treated the Contract as at an end. On 11 January 1999, for example, the Applicant's former solicitors wrote again to the Respondents' former solicitors ( responding to a letter from them dated 11 December 1998 ). Their letter concluded with the following paragraph: "We are instructed that your clients have made no attempt to rectify the defaults we supplied in the Notice of Suspension of Works. Our client intends to take appropriate action in accordance with the Contract." (Exhibit A2, annexure "U".) Clearly, the Applicant's legal advisers still treated the Contract as on foot at that time. The final correspondence between the solicitors also confirms that the Applicant had not accepted any repudiatory breach and made an election to treat the Contract as at an end. In a letter dated 4 March 1999, the Respondents' former solicitors advised the Applicant's former solicitors that their clients had "no option but to regard your client as having repudiated the Building Contract between the parties" because of his failure to continue the building works (Exhibit A2, annexure "X"). In a letter of response dated 5 March 1999, the Applicant's former solicitors made the following comments: "Our client's actions have been in accordance with the Contract and clearly do not amount to a repudiation. However, the last paragraph of your letter may well constitute a repudiation by your clients so as to give our client another ground to terminate the Contract." (Exhibit A2, annexure "Y".) Once again, it is clear that the Applicant's solicitors regarded the Contract as still in existence. Indeed, no further steps were taken under section 18 of the Contract by the Applicant or his legal representatives until a Notice of Determination dated 24 December 1999 was served on the Respondents. As discussed later, by this time the Contract had been terminated by the Respondents. Did the Applicant breach the Contract after 12 November 1998? 18 Mr. Davie submitted that around the time of the submission of the invoice for $80,000.00, the Applicant stopped work. He went on to say: "No justification for doing so at the time has been proffered: evidence is given that at the time the contractor was waiting for a site meeting in relation to the kitchen but the applicant does not say that this prevented him from proceeding with the work". As already noted, the Applicant's evidence relating to the kitchen work was disputed by Mr Haddad. We are of the view that whether or not the Applicant's evidence in this regard is accepted, it is not material to the question of whether the Applicant had ceased work as at 2 December 1998, the date of the Notice of Suspension of Works. There is nothing in the Applicant's two sworn statements (Exhibits A2 and A3) that suggests that he did any work on the property after 2 December 1998. As discussed earlier, in answer to questions from the Tribunal, the Applicant conceded that he did no work after 2 December 1998 except to check out the property to ensure it had not been damaged by vandals etc. He also confirmed in later evidence, however, that prior to paying the sub-contractor Monier Roofing on 11 February 1999 he had inspected its work and some lead flashing work done by the plumber. 19 On a consideration of the evidence before us, we conclude that the Applicant simply stopped performing his obligations under the Contract, certainly from 11 February 1999 if not from 2 December 1998, and had no intention to complete the work while the invoice for $80,000 remained unpaid. The issue of whether a breach is repudiatory must be looked at objectively. In Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 at 658, Dean and Dawson JJ said: "It suffices that, viewed objectively, the conduct of the relevant party has been such as to convey to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or the fundamental obligation under it". We find that the Applicant's conduct, objectively considered, was repudiatory. Alternatively, his failure to carry out and complete the Contract amounted to a breach of a condition or fundamental term of the Contract. 20 We found earlier that the Applicant unequivocally affirmed the Contract when he signed the Notice of Suspension of Works and Notice of Extension of Time on 2 December 1998 and by the terms of the letter of the same date from his former solicitors to the Respondents' former solicitors. Subsequent correspondence by the solicitors, also referred to earlier, confirmed the Applicant's attitude to the Contract. The obvious question that arises is how this affirmation of the Contract can be reconciled with a finding that the Applicant evinced a clear intention not to be bound by the Contract and was in repudiatory breach. To put it another way, was the Applicant entitled to rely on the Notice of Suspension of Works and refuse to carry out and complete the work unless and until the invoice of $80,000.00 was paid? The answer is that an unaccepted repudiation does not absolve an innocent party from his or her obligation to perform work under a contract - Fercometal SARL v Mediterranean Shipping Co SA (1989) AC 788. Assuming for the argument that the Respondents were in repudiatory breach by non-payment of the invoice for $80,000.00, the Applicant, not having accepted the repudiation by terminating the Contract (on the grounds that the default specified in the Notice of Suspension of Works had not been rectified) continued to be bound by his own fundamental obligations. Furthermore, while he may have had no actual intention to repudiate the Contract, his refusal to perform any further work, certainly after 11 February 1999, constituted a serious and fundamental breach. In Ross T Smyth and Co Ltd v TD Bailey Son and Co (1940) 3 All ER 60 at 72, Lord Wright said that is not "necessary to show that the party alleged to have repudiated should have an actual intention not to fulfil the contract. He may be determined to do so only in a manner substantially inconsistent with his obligations, and not in any other way". In other words, where a party adopts an erroneous construction of a contract, a repudiation may occur if that party acts on the construction by breaching one or more terms, or by evincing an intention to perform only in accordance with his or her construction – see also Lunar Park (NSW) Ltd v Traimways Advertising Pty Ltd (1938) 61 CLR 286. 21 On a consideration of the evidence before us, we find that the Applicant was in repudiatory breach of the Contract at least from 11 February 1999, due to his refusal to carry out and complete the work under the Contract. We also find that this repudiatory breach was accepted by the Respondents when their solicitors at that time wrote on 4 March 1999 to the Applicant's former solicitors advising that their clients had "no option but to regard your client as having repudiated the Building Contract between the parties" and advising that the Applicant was no longer authorised to enter the property or to perform any further work on the property. (Exhibit A2, annexure "X".) If there was any remaining doubt, we find that this acceptance was confirmed by the letter of 18 March 1999 from the Respondents' present solicitors to the Applicant's former solicitors, advising that the Applicant had "repudiated the agreement and our clients have accepted that repudiation as terminating the agreement" and advising that their clients had engaged "alternative contractors to complete the works" (Exhibit R2, annexure "Z"). 22 The question could be asked whether the Respondents were able to terminate the Contract on the basis of a repudiatory breach in circumstances where the Respondents' own conduct (on the assumption we adopted in our earlier reasoning) had earlier given rise to a right on the part of the Applicant to terminate the Contract. The answer is that an election to continue to be bound by a contract (by not accepting a repudiation) is final - that is, continuation is inconsistent with any right to terminate. In other words, where Party A has made an election to continue with a contract, Party B's prior repudiation does not preclude Party B from termination of the contract on the grounds of later repudiatory breach by Party A – Bowes v Chaleyer (1923 ) 32 CLR 159. Conclusion 23 We determine that the Applicant repudiated the Contract by his failure at least from 11 February 1999 to carry out and complete the work under the Contract. We also determine that the Respondents accepted the Applicant's repudiation and terminated the Contract. The result is that the Respondents are entitled to pursue their cross-claim for damages for breach of Contract. Mr. Davie's submissions addressed the question of mitigation but the Tribunal makes no finding in relation to this issue or in relation to the Respondents' claim for damages generally because these will be matters for further evidence and submissions when this matter is relisted for rehearing. 24 Evidence was given and cross- examination took place during the proceedings concerning additional work (so called variations to the Contract) allegedly performed by the Applicant, and a number of submissions were made by both Ms. Olsson and Mr. Davie concerning whether additional payment for this extra work could be claimed by the Applicant. We make no findings on these issues, first because the evidence relating to them is not complete and secondly because we consider that they are not material to the question of repudiatory breach and what flowed from that. They will clearly be relevant to later evidence and submissions on quantum and damages. …………………….. JP Gallagher Senior Member …………………….. EJ Grinston Member I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE FAIR TRADING TRIBUNAL. REGISTRAR DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.