Hi-Tech Telecom v RSL Com Australia [2011] NSWSC 1120

Supreme Court New South Wales

Medium Neutral Citation: Hi-Tech Telecom v RSL Com Australia [2011] NSWSC 1120 Hearing dates: 31/08/2011 and 01/09/2011 Decision date: 02 September 2011 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: Summons dismissed with costs Catchwords: CONTRACT - termination for breach - whether an intermediate term of the contract was breached - whether the breach was sufficiently serious to justify termination - whether termination for breach of intermediate term was valid where terminating party was also in breach of an intermediate term. Cases Cited: Almond Investors Limited v Kualitree Nursery Pty Limited & Anor [2011] NSWCA 198 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 Texts Cited: Macquarie Dictionary, revised third edition Category: Principal judgment Parties: Hi-Tech Telecom Pty Ltd (ACN 098 008 587) (Plaintiff) RSL Com Australia Pty Limited (Receivers and Managers Appointed) (In Liquidation) (ACN 074 627 642) (Defendant) Representation: Counsel: J C Kelly SC / D R Sulan (Plaintiff) D R Pritchard SC / J H Stephenson (Defendant) Solicitors: Piper Alderman (Plaintiff) Watson Mangioni Lawyers (Defendant) File Number(s): 2011/233453

Judgment 1HIS HONOUR: The question for decision in these proceedings is whether a deed made between the plaintiff (Hi-Tech) and the defendant (RSL Com) on 24 July 2009 (the deed), to settle litigation, has been terminated by RSL Com for breach by Hi-Tech. That question is to be resolved by reference to the following agreed issues: (1) whether Hi-Tech or RSL Com breached either or both of clauses 4.1 or 11 of the deed; (2) whether any breach by Hi-Tech entitled RSL Com to terminate the deed; (3) whether any breach by RSL Com precluded it from terminating the deed; and (4) whether (if the deed has not been terminated) the Court should order specific performance of the deed, or damages instead of specific performance. 2Before I turn to the substance of the disputes, I record that the hearing of these proceedings was brought on urgently, so that the parties should know where they stood in relation to both the deed and in relation to the earlier proceedings in this Court (290452/2008 - the 2008 proceedings). Accordingly, I am giving this judgment on the morning following the second day of hearing. I shall not refer to all the facts or submissions. What I am about to set out will be (I hope) sufficient to explain my conclusions. 3I record also that, since there was no attack on the credibility of the witnesses in the case, it is unnecessary to deal with that topic. 4For the reasons that follow, I conclude that: (1) each of Hi-Tech and RSL Com breached clause 4.1 of the deed; (2) Hi-Tech's breach was sufficiently serious to justify RSL Com's termination; alternatively, that breach constituted a repudiation that RSL Com was entitled accept and has accepted; (3) RSL Com's breach did not prevent it from terminating; and (4) thus, that the termination was valid. 5Taking those conclusions into account, it is not necessary to consider whether, on the facts as they appear, there were also breaches of clause 11 of the deed.