Sharjade Pty Ltd v The Commonwealth of Australia; RAAF (Landings) Ex-Servicemen Charitable Fund Pty Ltd (formerly Darwinia Estate Pty Ltd) v Sharjade Pty Ltd [2009] NSWCA 373

New South Wales Court of Appeal

CITATION: Sharjade Pty Ltd v The Commonwealth of Australia; RAAF (Landings) Ex-Servicemen Charitable Fund Pty Ltd (formerly Darwinia Estate Pty Ltd) v Sharjade Pty Ltd [2009] NSWCA 373

HEARING DATE(S): 19, 20 August 2009

JUDGMENT DATE: 26 November 2009

JUDGMENT OF: Hodgson JA at 1; Young JA at 136; Sackville AJA at 157

In Darwinia's application for leave to appeal: (1) Leave to appeal granted. (2) Notice of Appeal to be filed within fourteen days. (3) Appeal allowed. DECISION: (4) Orders of primary judge in relation to Sharjade's claim against Darwinia set aside. (5) In lieu thereof, Sharjade's claim against Darwinia dismissed with costs. (6) Sharjade to pay Darwinia's costs of the application and appeal, and to have a certificate under the Suitors' Fund Act 1951 if otherwise eligible. In Sharjade's appeal: (1) Appeal dismissed with costs.

CATCHWORDS: CONTRACTS – Option agreement between Commonwealth and ex-service organisation for latter to purchase Commonwealth land – Exercise of option – Whether concluded contract for sale then existed – Requirements of such contract as to payment of money – Notice by Commonwealth purporting to make time of the essence for making payments – Payments not made – Commonwealth gives notice of termination – Whether termination effective. - CONTRACTS – Agreement between ex-service organisation and developer concerning development of land – Promise by former to actively promote and assist developer to effect pre-sales of units in development – Promise by developer to arrange finance for the development – Breach by ex-service organisation of its obligation concerning pre-sales – Breach by developer of its obligation concerning finance – Ex-service organisation gives notice of termination – Whether termination effective – Whether developer's breach such as to justify termination – Whether terminating party precluded by its own breach from effectively terminating agreement. - TORTS – Inducing breach of contract – Elements of tort – Whether Commonwealth, by purportedly terminating option agreement, induced breach by ex-service organisation of its contract with developer.