Heard Marketing Pty Ltd v Play MR Pty Ltd

THE COURT: The applicant seeks leave to appeal from a judgment given for the respondent by Dicker SC DCJ on 9 November 2017.

The applicant contends that his Honour erred in two essential respects: first, in finding that the respondent had not elected to affirm a contract entered into between the parties concerning the development of a computer application following breach, in failing to perform by the contract date of 1 April 2016, that date being an essential term of the contract; and secondly, in finding that the applicant had repudiated the contract on 12 and 13 April 2016.

The applicant also contended that the primary judge determined the matter in part, at least, on a basis that was not pleaded, in that there was no pleaded claim that the failure to perform by the contract date of 1 April 2016 constituted repudiatory conduct. This complaint may be put aside. Assuming that his Honour wrongly recorded the submission, his Honour did not determine the matter on that basis. Rather, at [127]-[128], his Honour held that it was the applicant's conduct on 12 and 13 April 2016 that constituted the repudiatory conduct.

So far as his Honour's finding as to election is concerned, we consider that the argument and his Honour's reasons may have been misconceived. There was clearly a breach of an essential term on 1 April 2016 that gave rise to a claim in damages and a right to terminate. However, the respondent did not terminate the contract at that time.

Regardless of whether that is properly characterised as an election to affirm, the fact is it was neither pleaded nor otherwise argued that the contract was terminated or repudiated prior to 12 April 2016. Further, the applicant did not allege any waiver or variation of the essential term of the contract as to the time for performance. Even if, at that time, the respondent was prepared to allow some extension of time to perform the work, there was no doubt, on the evidence, that by 12 and 13 April 2016, the applicant had advised that a considerably longer period of time was required to perform the work and that the price for the work would be greater than had been agreed. That advice was sufficient to constitute a repudiation of the contract between the parties, if not expressly, then certainly by implication, as his Honour found.

As we consider that an appeal would have no prospects of success, leave to appeal is refused with costs.