Where there is a mere accord executory, no suit can be maintained upon the compromise unless and until there has been performance, and then suit is ordinarily unnecessary. Upon default in performance, the plaintiff's existing cause of action continues unaffected. With accord and satisfaction, either party may sue upon the compromise, but only on the compromise and for nothing else: the original cause of action has gone. Where there is accord and conditional satisfaction, the plaintiff is bound to await performance and accept it if tendered, but if there be no performance, then the plaintiff may proceed according to general principles called into play when any agreement is repudiated: the plaintiff may either treat the agreement (the accord) as at an end and proceed on his original cause of action; or he may, at his option, sue on the compromise agreement, in place of the original cause of action. Thus, the consequence should there be default in performance varies according to the case and, as indicated by Murphy J in Fraser at 401-2, it would be surely in the best interests of the parties if their legal advisers saw to it, when settling litigation, that the intended consequence upon default was clearly expressed and not left to implication.
25 In the letter of 3 July 2006, there is no suggestion that anything remains to be agreed, or that anything was subject to further documentation. There is nothing in the letter to suggest that formation of agreement was conditional upon any matter, other than confirmation that it accurately recorded the agreement, which was forthcoming on 5 July. None of its terms or provisions are expressed to be "subject to" or "conditional upon" anything, nor are any of the obligations expressed as provisos using terminology such as "provided that". (That the parties knew how to use such terminology, if required, is apparent from clause 5 which, in the last sentence, uses the terminology "subject to and pending completion", in respect of the release of the $30,000 payment). In my view, there is simply nothing in the letter of 3 July to lend support to any view other than that it was an unconditional contract, or if it be regarded in terms of accord, an accord and satisfaction proper. Neither formation of the contract, nor performance of any of the obligations it imposed, was made conditional on anything.
26 It follows that, in my opinion, the effect of the exchange of correspondence on 3 and 5 July 2006 was to amend in part, and otherwise confirm, the obligations under the existing five contracts, and to introduce some additional obligations (for example, the payment of $35,000). One consequence is that, by clause 9, the provisions as to interest in the five contracts for sale (in particular, special condition 3), were waived and were not able to be relied on or enforced by the vendor. It follows also - from my conclusion that the agreement was not conditional upon any act, either as to formation of the agreement or as to performance of its terms, that default in performance of a term did not result in avoidance of the contract: any such default was a breach of a term, and if it were a breach of an essential term would have given rise to a right to terminate, but the default in performance of any of those terms did not of itself cause the contract to lapse for failure of a condition. Moreover, even if the contract had been one the performance of which was conditional on some act, it would have remained on foot after the condition had failed unless and until one or other party elected to rescind it.
27 Accordingly, I reject so much of the Defence as contends that no binding contract was made on 5 July, or that any such contract was conditional and lapsed for failure of a condition.
Did Carydis repudiate?
28 Merrag next submits, however, that the contract was terminated for repudiation, as a result of the correspondence which took place in late November and December of 2006, the alleged repudiation being the insistence by the purchasers on a view of the contract that interest was not payable under the contract.
29 It follows, from my conclusion that the July correspondence resulted in a binding contract, that the view asserted by the purchasers - that no interest was payable - was correct: that was the precise effect of clause 9 of the 3 July letter. As the purchasers were insisting on a correct view of the contractual position, there could not possibly have been a repudiation.
Were the contracts abandoned?
30 Merrag submitted that the contracts had been abandoned following January 2007 and before proceedings were instituted in May 2007. In Fitzgerald v Masters (1956) 95 CLR 420, Dixon and Fullagar JJ said (at 432):
There can be no doubt that, where what has been called an 'inordinate' length of time has been allowed to elapse, during which neither party has attempted to perform, or called upon the other to perform, a contract made between them, it may be inferred that the contract has been abandoned. ... What is really inferred in such a case is that the contract has been discharged by agreement, each party being entitled to assume from a long-continued ignoring of the contract on both sides that ... the matter is off altogether.
31 The correspondence, to which I have already referred, of January, March and April 2007 - in which Mr Carydis and Ms Travassaros were demanding specific performance and threatening proceedings - on the one hand, and the absence of any refund of the deposits which Merrag held on the other, are, in my view, fatal to any contention that the contract was abandoned during that period. So also is the circumstance that the caveat lodged by the purchasers remained pending. And it was an application for the lapsing of that caveat that ultimately provoked the institution of these proceedings. I would reject the contention that the contracts were abandoned during the first few months of 2007.
Was Carydis ready willing and able to complete?
32 Merrag next submits that the purchasers were not ready, willing and able to complete, either between July 2006 and late 2006, or at the time of commencement of proceedings, or at the date of hearing.
33 In Sommers v Pearse (NSWCA, 16 December 1993, unreported, BC 9302367), Mahoney AP said:
There is no doubt that a defendant in a proceeding for specific performance may succeed if the plaintiff's readiness, willingness and ability to perform does not appear. But I confess to the feeling that in the main, cases of which this is one, defences of this kind have about them an air of artificiality. The point is often taken rather to ambush than to enforce the substantial merits of the case. In the days when pleadings were precise and demurrers were taken if they were not, the omission to particularise such matters in the statement of claim or to prove them formally in evidence could be fatal. A plaintiff could fail notwithstanding that there was in substance no question but that he would and could complete the contract. The law must be observed and what is to be proved must be proved. But the view may now be adopted, I trust, that pleadings and proofs are to serve, not to govern, the determination of disputes according to their substantial merits and that, if there be defects in the pleading, particularisation and proof of such matters, such defects can, when pointed out, be adjusted.