NSW Caselaw
New South Wales Court of Appeal
CITATION: M.K. & J.A. Roche Pty. Ltd. & Ors. v. Metro Edgley Pty. Ltd. & Anor. [2005] NSWCA 39
HEARING DATE(S): 17 December 2004
JUDGMENT DATE: 3 March 2005
JUDGMENT OF: Beazley JA at 1; Hodgson JA at 4; Ipp JA at 82
DECISION: 1. Appeal allowed. 2. Cross-appeal dismissed. 3. Orders below set aside. 4. Matter remitted to the Equity Division to determine the issues of conventional estoppel and election indicated in this judgment, the liability of the Guarantors, the issue of specific performance, and costs of the proceedings. 5. Respondents to pay the appellants' costs of the appeal and cross-appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible. 6. Liberty to the respondents to make written submissions as to orders 4 and 5 within 7 days, any response by the appellants to be provided within a further 7 days.
CATCHWORDS: CONTRACT - Construction - Whether provision for automatic rescission on non-satisfaction of conditions self-executing or required the giving of notice - Election - Need for awareness of circumstances entitling party to terminate contract - Need for action adverse to the other party - Sufficiency of terms of notice that contract terminated - ESTOPPEL - Conventional estoppel - Whether distinct from equitable estoppel - Need for reliance by and detriment to party seeking to raise estoppel - Requirement that party against whom estoppel asserted play such a part in adoption of the assumption that it would be unjust if it were left free to ignore it.
Amalgamated Television Services v. Marsden (No.2) [2003] NSWCA 186 Australian Broadcasting Commission v. Australasian Performing Rights Association (1973) 129 CLR 99 Byron Shire Council v. Vaughan [2002] NSWCA 158 Con-Stan Industries Australia Pty. Ltd. v. Norwich Winterthur Insurance (Australia) Ltd. (1986) 160 CLR 226 Eslea Holdings Ltd v. Butts (1986) 6 NSWLR 175 Giumelli v Giumelli (1999) 196 CLR 101 Grundt v. Great Boulder Proprietary Gold Mines Ltd. (1937) 59 CLR 641 Heggies Bulkhaul v. Global Minerals Australia (2003) 59 NSWLR 312 CASES CITED: Meehan v. Jones (1982) 149 CLR 571 Minister for Immigration v. Wang [2003] HCA 11 New Zealand Shipping Co. Ltd. v. Societe des Ateliers et Chantiers de France [1919] AC 1 Rudi's Enterprises Pty. Ltd v. Jay (1987) 10 NSWLR 568 Sandra Investments Pty. Ltd. v. Booth (1983) 153 CLR 153 Sargent v. ASL Developments Ltd. (1974) 131 CLR 634 Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418 The Commonwealth v. Verwayen (1990) 170 CLR 394 Thompson v. Palmer (1933) 49 CLR 507
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