Protector Glass Industries Pty Ltd v Southern Cross Autoglass Pty Ltd [2015] NSWCA 16

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Protector Glass Industries Pty Ltd v Southern Cross Autoglass Pty Ltd [2015] NSWCA 16 Hearing dates: 17, 18 November 2014 Decision date: 16 February 2015 Before: Meagher JA at [1]; Barrett JA at [23]; Gleeson JA at [111] Decision: Direct that the parties attempt to agree the calculation of interest on the two judgment sums referred to in the Court's reasons and do within 14 days file either agreed short minutes of orders giving effect to this Court's decision or the competing versions for which they respectively contend together with short written submissions in support. Catchwords: CONTRACTS – discharge, breach and defences to action for breach – repudiation and non-performance – what amounts to repudiation – anticipatory breach – whether particular conduct of the purchaser under a contract for the sale and purchase of a business was repudiatory – held that it was not – availability of a justification that was in fact not relied on was irrelevant to the issue of repudiation – whether, if there were repudiation, the vendor had accepted it – held that it had not – CONTRACTS – discharge by agreement – whether the parties abandoned their contract – held that they did. Cases Cited: ACN 096 278 483 Pty Ltd (as trustee of the Williams Family Trust) v Vercorp Pty Ltd [2011] QCA 189 Burger King Corp v Hungry Jacks' Pty Ltd [2001] NSWCA 187 Cedar Meats (Aust) Pty Ltd v Five Star Lamb Pty Ltd [2014] VSCA 32 Commonwealth Homes & Investment Co Ltd v MacKellar [1939] HCA 34; 63 CLR 351 Downer EDI Ltd v Gillies [2012] NSWCA 333; 92 ACSR 373 D.T.R. Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423 Fazio v Fazio [2012] WASCA 72 Foran v Wight [1989] HCA 51; 168 CLR 385 Gumland Property Holdings Pty Limited v Duffy Bros Fruit Market (Campbelltown) Pty Limited [2008] HCA 10; 234 CLR 237 Hartley v Pehall (1820) Peake 178; 170 ER 121 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115 Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd [1938] HCA 66; 61 CLR 286 Maradelanto Compania Naviera SA v Bergbau-Handel GmbH; The Mihalis Angelos [1971] 1 QB 64 Minion v Graystone Pty Ltd [1990] 1 Qd R 157 Rawson v Hobbs [1961] HCA 72; 107 CLR 466 Shepherd v Felt and Textiles of Australia Limited [1931] HCA 21; 45 CLR 359 Southern Cross Autoglass Pty Ltd v Protector Glass Industries Pty Ltd [2014] NSWSC 261 Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; 166 CLR 245 Taylor v Oakes, Roncoroni & Co (Taylor) (1922) 127 LT 267 TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 Williams v Frayne [1937] HCA 16; 58 CLR 710 Williams v Scott [1900] AC 499 Category: Principal judgment Parties: Protector Glass Industries Pty Ltd (Appellant) Southern Cross Autoglass Pty Ltd (First Respondent) Karin Elke Rankine (Second Respondent) Geoffrey James Rankine (Third Respondent) Representation: Counsel: S Couper QC/ A J Abadee (Appellant) A F Fernon/G N Farland (Respondent) Solicitors: File Number(s): CA 2014/104115 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2014] NSWSC 261 Date of Decision: 13 March 2014 Before: Kunc J File Number(s): SC 2009/289128