Waters Lane & Anor v Sweeney & Ors [2007] NSWCA 200

New South Wales Court of Appeal

CITATION: Waters Lane & Anor v Sweeney & Ors [2007] NSWCA 200 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18-20 July 2007

JUDGMENT DATE: 16 August 2007

JUDGMENT OF: Giles JA at 1; Santow JA at 2; Tobias JA at 3

DECISION: (a) ORDER that the appeal be dismissed; (b) DECLARE that the Heads of Agreement dated 9 March 2004 between the appellants and the respondents was validly terminated by the respondents with effect as from 1 May 2006 pursuant to an undated "Notice under Clause 8.2(b) Notice of Termination" forwarded under cover of a letter from David Begg & Associates to Gadens Lawyers dated 1 May 2006; (c) ORDER that the appellants pay the respondents' costs of the appeal.

CATCHWORDS: CONTRACTS – Construction and interpretation – All reasonable endeavours – Conditions subsequent not satisfied by sunset date – Whether to take into account an unexercised unilateral right to extend sunset date in determining breach – Termination – Contractual right of termination enlivened only after notice giving time to cure breach – Whether a breach that is not capable of being cured in the given time is one for which such a notice can be validly given – Election – Whether giving notice of termination pursuant to contractual clause constitutes election and waives right to terminate at common law

Conveyancing Act 1919 LEGISLATION CITED: Real Property Act 1900 Environmental Planning and Assessment Act 1978 Environmental Planning Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005

Batson v De Carvalho (1948) 48 SR (NSW) 417 Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187 Champtaloup v Thomas [1976] 2 NSWLR 264 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 Hungry Jack's Pty Ltd v Burger King Corp [1999] NSWSC 1029 Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26; [1993] HCA 27 CASES CITED: L Schuler AG v Wickman Machine Tools Sales Ltd [1974] AC 235 Sargent v ASL Developments Pty Ltd (1974) 131 CLR 634 Sheffield District Court Railway Co v Great Central Railway Co (1911) 27 TLR 451 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 Terrell v Mabie Todd & Co Ltd (1952) 69 RPC 234 The Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 Tricontinental Corporation Ltd v HDFI Ltd (1990) 21 NSWLR 689