Cooper v Kinsella [2011] NSWCA 45

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Cooper v Kinsella [2011] NSWCA 45 Hearing dates: 4 February 2011 Decision date: 11 March 2011 Before: Allsop P at 1; Hodgson JA at 4; Sackville AJA at 67 Decision: (1) Appeal allowed. (2) Orders below set aside. (3) Judgment for Mr Cooper against the respondents for $133,923. (4) Order that the respondents pay Mr Cooper interest on $133,923 from 1 September 2005 until to-day at prescribed rates. (5) Order that the respondents pay Mr Cooper's costs of the proceedings below. (6) Order that the respondents pay Mr Cooper's costs of the appeal, and that they have a certificate under Suitors' Fund Act 1951 if otherwise eligible. If within fourteen days the parties provide the Court with an agreed calculation of interest up to to-day, the Court will give judgment for that amount (pursuant to order (4) above), to take effect from to-day. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACT - Breach - Repudiation - Whether actual breach in the circumstances conveyed repudiation - Whether repudiation accepted - Whether innocent party relieved from performing condition precedent - Application of principle in Peter Turnbull & Co Pty Limited v Mundus Trading Co (Australasia) Pty Limited [1954] HCA 25; (1954) 90 CLR 235.