NSW Caselaw
New South Wales Supreme Court
CITATION : Muriti v Prendergast [2005] NSWSC 526
HEARING DATE(S) : 23, 24, 25, 26 May 2005
JUDGMENT DATE : 2 June 2005
JURISDICTION : Equity Division
JUDGMENT OF : Burchett AJ at 1
DECISION : Motion for leave to terminate contract for alleged repudiation following a specific performance order dismissed; declarations and orders made in respect of contractual rights and obligations
CATCHWORDS : CONTRACT - repudiation - requirement of leave to terminate following specific performance order - whether insistence on particular views of the contract evinced repudiatory intention - repudiation, being a serious matter, not lightly to be found - construction of contract - effect upon construction of conduct subsequent to contract - effect on obligations under a lease of its having a retrospective commencement date - whether interest could be payable from a date before the execution of the lease in the absence of a specific term to that effect - effect of a waiver of the right to timely payment of rent upon a claim to interest upon that rent as a claim not consistent with the waiver.
Carter and Harland, Contract Law in Australia (4th ed, 2002) section 712 Meagher Gummow and Lehane's Equity Doctrines and Remedies (4th ed., 2002) 699-700 Carr v J A Berriman Pty Ltd (1953) 89 CLR 327 Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 D.T.R. Nominees Proprietary Limited v Mona Homes Proprietary Limited (1978) 138 CLR 423 CASES CITED : Laurinda Pty Limited v Capalaba Park Shopping Centre Pty Limited (1989) 166 CLR 623 Motor Oil Hellas (Corinth) Refineries S.A. v Shipping Corporation of India (the "Kanchenjunga") [1990] 1 Lloyd's Rep 391 Progressive Mailing House Proprietary Limited v Tabali Proprietary Limited (1985) 157 CLR 17 at 33 Ross T Smyth & Co Ltd v T.D. Bailey, Son & Co [1940] 3 All ER 60 Shevill v The Builders Licensing Board (1982) 149 CLR 620 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326
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