Edwin Davey Pty Ltd v Boulos Holdings Pty Ltd [2022] NSWCA 65 (26 April 2022) (Macfarlan and Gleeson JJA, Simpson AJA)


Catchwords:


CONTRACT – breach of contract – land sale contract – nature of breach – failure to complete by fixed date – where time not of the essence – whether failure to complete on time a continuing breach – substantive and temporal nature of obligation to complete

CONTRACT – remedies – damages – causation – where delay in completion – claim for consequential loss – expenditure incurred in mitigating action – interplay between causation and mitigation – whether causative link between breach and action to mitigate loss – where purchaser agreed to pay mortgagee up to $500,000 if shortfall on recovery of mortgagee’s loan from second security

CONTRACT – remedies – damages – mitigation of loss – vendor unable to obtain discharge of mortgage – expenditure incurred by purchaser to obtain discharge of mortgage – whether reasonable action to mitigate loss – where available alternatives would have exposed purchaser to potentially greater loss

CONTRACT – remedies – damages – remoteness – whether in contemplation of parties that purchaser would need to pay off part of mortgagee’s loan to obtain discharge of mortgage – where vendor had not obtained mortgagee’s consent to contract for sale or the release of deposit or prepayment to the vendor – where vendor failed to complete on fixed date