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[2026] QCA 45
respondent. Appeal dismissed. The appellant was ordered to pay the respondent’s costs of the appeal. The first-instance judgment dismissing the claim and giving judgment on the counterclaim, with damages to...
The Court of Appeal held that the extra promises made in March did not make the buyer’s payment at settlement conditional on their performance. The standard contract expressly linked payment and specified settlement documents by saying they were exchanged for one another. The later amendments did not use comparable words, and references to performance “prior to settlement” fixed the time for performance only. The court also found that the alleged breaches did not give the buyer a right to terminate and did not prevent the seller from relying on the buyer’s failure to settle. It therefore upheld summary judgment for the seller and dismissed the appeal.
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2,192 words · generated 08/10/2026
The appeal concerned a residential property sale at Tamborine. On 10 March 2024, Neveen Moussa agreed to buy the property from Mellissa Eather for $1,580,000, with a deposit of $79,000. The contract used the standard REIQ form and included special conditions about inspections, items included in the sale, emptying the septic tank and installing compliant smoke alarms ([3], [13]-[15]).
1 cited instrument linked from this judgment.
After Ms Moussa obtained a building and pest report, her solicitor sent proposed conditions on 18 March. They included a $5,000 price reduction, a list of items the seller was willing to sell, cooperation with questions about the property and handover, removal of a pool table, proof of completion of specified special conditions, continuing an insurance claim, completion of specified electrical work, and confirmation that the tiny house would be handed over with its contents ([17]). The parties’ solicitors exchanged emails on 19 March confirming agreement on the basis that the buyer treated the building and pest condition as satisfied ([18]-[22]).
Ms Moussa did not settle on the relevant date, which the judgment describes as either 22 or 24 April 2024. She alleged that Ms Eather had failed to comply with various contract terms. The allegations included missing goats, incomplete mowing and cleaning, missing items, electrical concerns, a non-functioning gate, and a failure to repair parts of the septic or irrigation system ([4], [23]-[24]).
Ms Eather said she had lawfully terminated because Ms Moussa failed to settle. She brought a counterclaim for damages. At first instance, she obtained summary judgment dismissing Ms Moussa’s claim and judgment on the counterclaim, with damages to be assessed ([6]-[8]). On appeal, Ms Eather relied on a notice of contention rather than supporting the trial judge’s reasoning. The central question became whether the alleged seller breaches justified non-payment or prevented Ms Eather from terminating ([9]-[12]).
The Court of Appeal, comprising Mullins P, Henry J and Sullivan J, dismissed the appeal. Mullins P and Henry J agreed with Sullivan J’s reasons ([1]-[2]). The orders required Ms Moussa to pay Ms Eather’s appeal costs ([104]).
The court treated the question of dependency as one of contract interpretation. The task was to identify the parties’ objective intention from the text and context, rather than from one party’s private understanding ([60], [64]). It referred to Kay v Playup Australia Pty Ltd for relevant considerations, including express wording, the connection between obligations, whether they go to the whole consideration or root of the contract, and whether damages can compensate for breach ([57]).
The standard REIQ term mattered. Clause 5.3(1) stated that, “In exchange for payment of the Balance Purchase Price”, the seller had to deliver specified items and documents at settlement. The Court read this as an express link between the buyer’s payment and the seller’s identified obligations ([65]). By contrast, the March amendments did not say that payment was “in exchange for” performance of those additional promises, or use similar words linking them to payment.
Some amendment terms were to be performed “prior to settlement”. Ms Moussa argued that this wording connected those obligations to settlement and therefore to her own payment obligation. The Court rejected that reading: “prior to settlement” specified when the promises were due, not whether they were conditions of payment ([65]). It also considered the amendments individually, including the price reduction, list of sale items, cooperation, pool-table removal, proof of septic-tank work, insurance-claim follow-through, specified electrical work and tiny-house contents ([65]).
The Court concluded that none of those amendment terms went to the whole consideration or the root of the contract. It considered the alleged breaches capable of compensation by damages and not sufficient to provide Ms Moussa a right to terminate ([65], [74]). This conclusion addressed the character and effect of the pleaded breaches, rather than deciding that every alleged factual complaint was necessarily unfounded in every respect.
The judgment separately addressed Ms Eather’s ability to terminate. It referred to authorities stating that a party seeking to terminate for the other party’s breach must be ready, willing and able to perform. But the court explained that a party may still meet that requirement despite breaches of non-essential or innominate terms, provided those breaches would not give the other party a right to terminate ([69]-[73]). It found the breaches pleaded by Ms Moussa did not meet that threshold ([74]).
The Court examined examples. It said the 240-volt cable was discovered after the March amendments and was not part of the specific electrical work promised in term 7 ([77]-[78]). It found no contractual obligation to provide a safety certificate for the whole property, describing that demand as first raised on 23 April ([79]-[82]). For the work actually specified in term 7, the evidence included invoices and the electrician’s licence number. The court considered this sufficient evidence and found that a further compliance certificate was not required by that term ([83]-[94]).
As to the gate and septic system, term 6 required Ms Eather to continue following through with the insurance claim before settlement. The Court found no obligation in that term to repair the items themselves, and no suggestion that the required follow-through had not occurred ([95]-[98]). These readings of the specific written terms informed the overall finding that Ms Eather was ready, willing and able to perform the obligations that were interdependent with payment ([101]).
Finally, the Court held that summary judgment was suitable. The relevant communications forming the amendments were in writing and before the court, and there was no identified missing pre-contractual contextual material. The appellate court considered itself as well placed as a trial court to construe the contract ([61]-[63]). It concluded that Ms Moussa had no real prospects of success and no issue requiring a trial ([99]-[100]).
This judgment does not purport to create a new general test for contractual dependency. It applied existing principles to a particular REIQ contract and a set of written amendments. Its stated approach was that the parties’ intention is assessed objectively, by considering the contract’s text and context ([57]-[60]).
The judgment discussed Newcombe v Newcombe on how dependency may arise where covenants are not expressly connected. The passage reproduced at [58] explains that, where covenants appear independent, an implication of dependency must be justified by the ordinary requirements for implying a contractual term. It also emphasises that the question remains one of intention. Sullivan J did not treat general preference for dependency as a rule. At [59], he rejected Ms Moussa’s submission that clear words are necessary before obligations can be found independent, referring to Kay.
The decision also clarifies the role of timing language in this contract. A promise due “prior to settlement” did not, without more, condition the buyer’s obligation to pay at settlement ([65]). The relevant contrast was the express exchange language in cl 5.3(1), not a broad rule that timing words can never support dependency.
On termination, the judgment applied the distinction between breaches that do and do not provide a right to terminate. It stated that a party in breach can remain ready, willing and able to perform where the breach is of a non-essential term or an innominate term not breached in a way that permits termination ([71]-[74]). The court’s application depended on its findings about the contractual wording and pleaded breaches in this case.
The judgment provides no account of legal developments after its delivery on 17 March 2026. It therefore cannot establish how the law changed after the decision, or whether any later authority has modified its reasoning.
At [60], Sullivan J said that dependency is a question of contractual interpretation, focused on the text and context to determine objective intention. In plain English, the court looks at what the agreement, read as a whole and in its setting, would communicate to reasonable parties. A party’s uncommunicated private belief does not determine the meaning ([64]).
At [65], the Court contrasted cl 5.3(1)’s express words “in exchange for” with the absence of comparable wording in the amendments. Its explanation that “prior to settlement” indicated timing means that a deadline does not automatically make another party’s payment conditional on performance by that deadline.
At [71], the Court stated that a party may be ready, willing and able to perform despite breach, if the breach does not give the counterparty a right to terminate. Put simply, not every contractual failure disables the party in breach from relying on the other party’s separate failure.
At [97], the Court read the insurance term according to what it required: continuing to follow through with the insurance claim before settlement. It did not read the wording as a promise to complete repairs. The passage illustrates the importance of identifying the precise obligation agreed, rather than treating related practical expectations as contractual promises.
At [100]-[102], the Court connected its findings to the procedural result. It considered there was no real prospect of Ms Moussa succeeding, found Ms Eather ready, willing and able to perform the relevant interdependent obligations, and concluded Ms Eather had terminated under cl 9.1 after the buyer failed to pay.
The decision is most directly relevant to disputes involving a land-sale contract where a standard form contains express exchange language for settlement deliverables, while later amendments add promises to be completed before settlement. It is particularly pertinent where one party argues that a “prior to settlement” deadline makes performance a condition of the other party’s settlement payment ([65]-[66]).
It may also be relevant where a party refuses to complete because of alleged breaches that concern repairs, certificates, chattels, cleanliness, or other matters added through correspondence. The judgment shows the importance of matching each alleged breach to the actual words of the contract or amendment. Here, the Court distinguished a promise to follow through with an insurance claim from a promise to repair, and distinguished specified electrical work from a later demand for a certificate for the entire property ([79]-[98]).
For termination disputes, the case addresses the relationship between a seller’s alleged breach and the seller’s ability to terminate for the purchaser’s failure to settle. The analysis turns on whether the seller’s breach was essential or sufficiently serious to give the purchaser a termination right, not merely on whether some breach was alleged ([69]-[74]).
The decision also identifies circumstances in which summary judgment may resolve a construction dispute: where the relevant formation material is before the court, the issue is capable of determination on that material, and the plaintiff has no real prospect of success ([61]-[63], [99]-[100]). It does not establish that all disputes about settlement breaches are suitable for summary judgment.
The judgment text supplied contains no subsequent judicial treatment of Moussa v Eather. It therefore does not show whether later courts have followed, applied, distinguished or questioned this decision. No conclusion about its later precedential treatment can be drawn from the supplied material.
Within its own reasoning, the Court referred to earlier authorities for the principles it applied. It relied on Kay v Playup and Newcombe when addressing contractual dependency ([57]-[60]). It distinguished Jeppesons Road, explaining that the relevant obligations there were expressly covered by the REIQ clause’s “in exchange for” wording, unlike the additional terms in this appeal ([65]). It referred to Barrak Corporation, Kraguljac, Zahedpur, Roadshow Entertainment and Gramotnev in discussing readiness, willingness and ability to perform ([69]-[73]). It also referred to Salcedo on the operation of summary judgment rules ([99]).
Those references explain the doctrinal background used by the Court. They are not evidence of later treatment of Moussa itself.
The judgment leaves the application of its reasoning to different contractual wording open. It decided that “prior to settlement” did not establish dependency in these amendments, read as a whole. It did not decide what result would follow if an amendment expressly stated that settlement was conditional on performance, or used wording specifically linking a promise to payment ([65]).
It also did not decide how a different factual finding about the seriousness or consequences of a breach might affect termination. The Court held that the pleaded breaches in this case were not essential or serious enough to give Ms Moussa a termination right ([74], [94], [97]). A case involving different contractual terms or materially different evidence could require a different application of the principles.
The decision records competing assertions about safety and habitability, but its conclusions were tied to the specific contractual promises, evidence and pleading before it. It does not establish a general rule about when electrical, septic, gate or property-condition problems will be sufficiently serious to permit termination.
Finally, the judgment’s summary-judgment conclusion depended on the court’s view that the relevant written formation material was before it and that no issue required trial ([62]-[63], [100]). It does not resolve how a materially different evidentiary record, disputed communications, or a genuine factual conflict would affect the suitability of summary determination.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Moussa v Eather [2026] QCA 45
PARTIES: NEVEEN MOUSSA / (appellant) / v / MELLISSA GAI EATHER / (respondent)
FILE NO/S: Appeal No 3398 of 2025 / SC No 6852 of 2024
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2025] QSC 156 (Martin SJA)
DELIVERED ON: 17 March 2026
DELIVERED AT: Brisbane
HEARING DATE: 10 November 2025
JUDGES: Mullins P, Henry J, Sullivan J
ORDERS: Appeal dismissed. The appellant to pay the respondent’s costs of the appeal.
CATCHWORDS: CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the appellant and respondent entered into a contract for the sale of land – where the contract made use of the standard form contract approved by the Real Estate Institute of Queensland – where cl 5.3(1) of the standard terms provided for obligations of the respondent expressed to be “[i]n exchange for payment of the Balance Purchase Price” – where terms subsequently inserted into the contract provided for performance “prior to settlement” – whether the respondent’s obligations to be performed “prior to settlement” could be said to be interdependent with the appellant’s obligation to pay the Balance Purchase Price, in the absence of express language – whether the respondent had a right to terminate the contract notwithstanding their prior breaches of the subsequently inserted terms / CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the appellant and respondent entered into a contract for the sale of land – where terms were subsequently inserted into the contract imposing additional obligations on the respondent – where those terms were breached – where the respondent purported to terminate the contract notwithstanding their breaches of the additional obligations – whether those breaches were of essential terms or innominate terms capable of being breached to the extent that a right to terminate arises – whether, despite the respondent’s admitted breaches, they could be said to be ready, willing and able to perform the contract at the time they purported to terminate the contract for the appellant’s breach / PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where summary judgment was given in favour of the defendant – whether the preconditions to the exercise of the discretion to deal with the matter summarily were present / Uniform Civil Procedure Rules 1999 (Qld), r 292, r 293 / Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd [2016] NSWCA 32, cited / BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; [1977] UKPCHCA 1, cited / Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; [2005] QCA 227, cited / Gramotnev v Queensland University of Technology [2019] QCA 108, cited / Jeppesons Road Pty Ltd v Di Domenico [2005] QCA 391, distinguished / Kay v Playup Australia Pty Ltd [2020] NSWCA 33, considered / Kraguljac v A & B Property Developments Pty Ltd (No 2) [2012] SASC 1, cited / Newcombe v Newcombe (1934) 34 SR (NSW) 446; [1934] NSWStRp 44, cited / Roadshow Entertainment Pty Ltd v (ACN 053 006 269) Pty Ltd (formerly CEL Home Video Pty Ltd) (1997) 42 NSWLR 462; [1997] NSWSC 473, cited / Zahedpur v Idameneo (No 123) Pty Ltd [2016] QCA 134, cited
COUNSEL: D J Williams for the appellant / M J Downes for the respondent
SOLICITORS: RD Martin & Company for the appellant / Hillhouse Legal Partners for the respondent
MULLINS P: I agree with Sullivan J.
HENRY J: I agree with Sullivan J.
SULLIVAN J:
Introduction
This appeal concerns the sale of a property at Tamborine by a contract entered into on 10 March 2024 with the respondent/defendant, Ms Eather, agreeing to sell that property to the appellant/plaintiff, Ms Moussa. The contract made use of the standard form REIQ contract. The contract as initially formed was subsequently amended to include certain additional terms which were set out in an 18 March 2024 letter.
On the settlement date, which was either 22 or 24 April 2024,1 Ms Moussa refused to settle because, on her case, Ms Eather was in breach of the contract.
Ms Moussa commenced the proceeding below seeking, amongst other things, specific performance of the contract within seven business days of an order of the court, but subject to certain requirements which she articulated in her claim for relief.
Ms Eather, as the defendant in the proceeding, contended that she had lawfully terminated the contract by written notice on 24 April 2024, because Ms Moussa had failed to settle on the relevant settlement date. Ms Eather brought a counterclaim for damages arising from the termination of the contract.
The hearing below was a summary judgment application brought by Ms Eather as the defendant on the claim, and as the plaintiff on the counterclaim. Ms Eather succeeded on the summary judgment application and obtained a judgment dismissing Ms Moussa’s claim, and obtained a judgment against Ms Moussa on the counterclaim, with damages to be assessed.
The decision below largely turned on what the learned trial judge concluded were deemed admissions on the pleadings, namely that none of the breaches relied upon by Ms Moussa below, as justification for her failing to settle, were of Essential Terms.2
Ms Eather, on this appeal, did not seek to support the judgment on the basis of the reasoning of the trial judge. It is unnecessary therefore to articulate the grounds of appeal relied upon which focused on the reasons at first instance.
Ms Eather, by way of a notice of contention, sought to support the judgment on the basis that none of the breaches of contract relied upon by Ms Moussa in paragraphs [22] and [23] of her statement of claim:entitled Ms Moussa to refuse to settle the contract on the settlement date;went “to the whole consideration” under the contract or “to the root of the contract”;were interdependent with Ms Moussa’s obligation to pay the Balance Purchase Price3 on the settlement date.
The notice of contention further provided that the judgment below could be upheld because on the proper construction of the contract, Ms Moussa was obliged to pay the Balance Purchase Price on the Settlement Date notwithstanding the alleged breaches pleaded in paragraphs [22] and [23] of the statement of claim.
Background facts
The contract entered into on 10 March 2024 provided for a deposit of $79,000 and an overall purchase price of $1,580,000.
The contract contained special conditions relevantly as follows:4
“SPECIAL CONDITIONS
…
4.The offer is subject to plumbing and septic tank inspections to take place on or before 14 days from the date of contract signature.
5.The following items shall be included in the sale:
a.The tiny house including all its indoor and outdoor furniture and fridge
c.The benchtops and shelving in the shed
d.All decorative planters, plant pots and garden sculptures/artwork (with the exclusion of 1 pot & budda head)
e.All chickens (15 in total)
f.The storage container near rear paddock
g.The two rubber swans in the dam
6.The seller shall at its own expense: a) Empty the septic tank b) install compliant smoke alarms and provide compliance certificate
7.The buyer has the option to include the 2 goats at no additional cost, with an acceptance by 5pm Thursday 14th.”
“1. DEFINITIONS
1.1In this contract, terms in bold in the Reference Schedule have the meanings shown opposite them and unless the context otherwise requires:
…
“Balance Purchase Price” means the Purchase Price, less the Deposit paid by the Buyer;
…
“Essential Term” includes, in the case of breach by:
the Buyer: clauses 2.2, 2.5(1), 2.5(5), 5.1 and 6.1; and
the Seller: clauses 2.5(5), 5.1, 5.3(1)(a)-(e), 5.5 and 6.1;
but nothing in this definition precludes a Court from finding other terms to be essential;
…
2.5 Payment of Balance Purchase Price
On the Settlement Date, the Buyer must pay the Balance Purchase Price by bank cheque as the Seller or the Seller’s Solicitor directs.
…
4. BUILDING AND PEST INSPECTION REPORTS
4.1 This contract is conditional upon the Buyer obtaining a written building report from a Building Inspector and a written pest report from a Pest Inspector (which may be a single report) on the Property by the Inspection Date on terms satisfactory to the Buyer. The Buyer must take all reasonable steps to obtain the reports (subject to the right of the Buyer to elect to obtain only one of the reports).
4.2 The Buyer must give notice to the Seller that:
a satisfactory Inspector’s report under clause 4.1 has not been obtained by the Inspection Date and the Buyer terminates this contract. The Buyer must act reasonably; or
clause 4.1 has been either satisfied or waived by the Buyer.
4.3 If the Buyer terminates this contract and the Seller asks the Buyer for a copy of the building and pest reports, the Buyer must give a copy of each report to the Seller without delay.
4.4 The Seller may terminate this contract by notice to the Buyer if notice is not given under clause 4.2 by 5pm on the Inspection Date. This is the Seller’s only remedy for the Buyer’s failure to give notice.
4.5 The Seller’s right under clause 4.4 is subject to the Buyer’s continuing right to give written notice to the Seller of satisfaction, termination or waiver pursuant to clause 4.2.
…
5.3 Documents and Keys at Settlement
In exchange for payment of the Balance Purchase Price, the Seller must deliver to the Buyer at settlement:
unstamped Transfer Documents capable of immediate registration after stamping; and
any instrument necessary to release any Encumbrance over the Property in compliance with the Seller’s obligation in clause 7.2; and
if requested by the Buyer not less than 2 clear Business Days before the Settlement Date, the Keys; and
if there are Tenancies:
the Seller’s copy of any Tenancy agreements;
a notice to each Tenant advising of the sale in the form required by law; and
any notice required by law to transfer to the Buyer the Seller’s interest in any Bond; and
a copy of a current Pool Compliance Certificate for each regulated pool on the Land unless:
the Seller has done this before settlement; or
the Seller has given the Buyer a notice under section 28 of the Building Regulation 2021 (Notice of No Pool Safety Certificate) before entry into this contract.
…
5.5 Possession of Property and Title to Include Chattels
On the Settlement Date, in exchange for the Balance Purchase Price, the Seller must give the Buyer vacant possession of the Land and the Improvements except for the Tenancies. Title to the included Chattels passes at settlement.
5.6 Reservations
The Seller must remove the Reserved Items from the Property before settlement.
The Seller must repair at its expense any damage done to the Property in removing the Reserved Items. If the Seller fails to do so, the Buyer may repair that damage.
Any Reserved Items not removed before settlement will be considered abandoned and the Buyer may, without limiting its other rights, complete this contract and appropriate those Reserved Items or dispose of them in any way.
The Seller indemnifies the Buyer against any damages and expenses resulting from the Buyer’s actions under clauses 5.6(2) or 5.6(3).
…
6. TIME
6.1 Time of the Essence
Time is of the essence of this contract, except regarding any agreement between the parties on a time of day for settlement.
…
8. RIGHTS AND OBLIGATIONS UNTIL SETTLEMENT
8.1 Risk
The Property is at the Buyer’s risk from 5pm on the first Business Day after the Contract Date.
…
9. PARTIES’ DEFAULT
9.1 Seller and Buyer May Affirm or Terminate
If the Seller or Buyer, as the case may be, fails to comply with an Essential Term, or makes a fundamental breach of an intermediate term, the Seller (in the case of the Buyer’s default) or the Buyer (in the case of the Seller’s default) may affirm or terminate this contract under this clause.
Clause 9.1 does not limit any other right or remedy of the parties including those under this contract or any right at law or in equity.
9.2 If Seller Affirms
If the Seller affirms this contract under clause 9.1, it may sue the Buyer for:
damages;
specific performance; or
damages and specific performance.
…
9.5 If Buyer Terminates
If the Buyer terminates this contract under clause 9.1, it may do all or any of the following:
recover the Deposit and any interest earned;
sue the Seller for damages.
…”
The terms of the contract were subsequently amended. The relevant amendments for the purposes of this appeal can be seen in correspondence between the solicitors for each party as follows.
Ms Moussa had obtained a building and pest inspection report as contemplated by cl 4.1 of the contract. Ms Moussa’s solicitor then wrote to Ms Eather’s solicitors on 18 March 2024 in the following terms:
“…
We refer to the above transaction.
Please find attached our client’s building & pest inspection report.
We reserve the buyer’s rights under the contract in respect of the building and pest inspection condition.
We are instructed that the parties have reached agreement (via the real estate agent) regarding the issues raised in the report.
On a ‘without prejudice’ basis the buyer offers to treat the building & pest inspection condition of the contract as having been satisfied on the following conditions:
1.The contract price is to be reduced by $5,000, to be adjusted at settlement;
2.The seller will provide the buyer (prior to settlement) with a list of items located at the property that the seller is willing to sell, and the buyer will have first option to purchase any of the so listed items;
3.The seller will co-operate with the buyer in relation to any questions the buyer may have regarding the property, the animals on the property and handover of the property;
4.The seller will remove the pool table in the rumpus room prior to settlement;
5.The seller will provide proof of completion of Special Condition 6 of the contract prior to settlement;
6.The seller will continue to follow through (prior to settlement) with the existing insurance claim in relation to damage caused to the irrigation pipes by a falling tree, and damage to the front gate auto systems;
7.The seller will have the (currently) incomplete electrical works (namely the live wire at the back of the shed is to be terminated and a generator switch is to be connected) completed by a qualified tradesman prior to settlement and provide evidence of same;
8.Confirmation that the tiny house will be handed over at settlement in turn key condition with all of its inside and outside contents (including, but not limited to bedding, towels, decor, indoor & outdoor furniture, and all chattels presently inside and outside the tiny house).
…”
“Dear Colleagues
We are instructed that our client is agreeable to your clients requests in your correspondence dated 18 March 2024, on the basis the Buyers proceed to an unconditional contract today.
I understand, the inspection of the septic tank has already been carried out.
We look forward to your reply.
…” (emphasis in the original email)
“Dear Colleagues,
We have your email of 1.56pm today.
We confirm that the building & pest condition of the contract has been satisfied on the basis that the seller complies with the conditions stated in our correspondence to you dated 18/03/24.
…”
“Dear Colleagues
Please note our client is agreeable to the items noted in your correspondence on the basis the contract is unconditional today.
Whilst the condition itself is quite ambiguous – for completeness, please confirm your clients instructions in relation to special condition 4.
…”
“…
Thank you for your email.
Pursuant to Special Condition 4 of the contract the buyer was to carry out septic tank and plumbing inspections within 14 days of the contract date.
The inspections have been done, and Special Condition 4 has been completed.
We confirm that the building & pest inspection clause of the contract has been satisfied as per the conditions outlined in our correspondence to you of 18/03/24.
Should you wish to discuss this matter, please do not hesitate to contact our office.
…”
By the conclusion of this chain of correspondence, the eight numbered paragraphs contained in the original email of 18 March 2024 had amended the initial contract (“the 18 March amendments”).
Ms Moussa contended that she was not obliged to settle and tender the balance of the purchase price on the Settlement Date due to Ms Eather being in breach of the contract. The pleaded facts constituting the alleged breaches were predominantly as follows:5
“22.
…
The 2 goats included in the contract price were no longer at the property;
Only some basic mowing of the property had been completed by the [defendant], namely at the front of the residence. The full front and back of the residence and the paddocks had not been mowed. Fallen trees and debris had been left on the property by the [defendant].
The items required to be repaired under the [defendant’s] insurance claim in accordance with condition 6 of the agreement of 19 March 2024 had not been repaired, particulars of which are as follows:
a. The septic tank/irrigation pipe had been disconnected and left on the ground, not repaired;
b. The front gate was not functioning, could not be operated and had to be manually opened, thus posing a safety risk;
The property had not been left in the condition it was in when the [plaintiff] entered into the contract, namely the property was unvacuumed and uncleaned particulars of which are as follows:
a.– old furniture, including cider bottles, paint cans, various clutter and rubbish had been left in the shed by the [defendant], therefore the [defendant] failed to deliver vacant possession of the property to the [plaintiff] as per the terms of the contract;
b.– the garage floor was left in a dirty condition;
c.– the shed floor was left in a dirty condition;
d.– the side patio floor was left in a dirty condition;
e.– the patio ceiling was full of moths and insects;
f.– the general state of the property was unclean, and riddled with dead insects;
The wheelie bins had not been emptied;
No map of the fruit trees, their number, type and location had been provided to the [plaintiff] by the [defendant] with the exception of 4 labelled trees;
A 240 volt electrical cable running from the tiny house was untrenched and hung along a fence posing significant safety risk of fire to the property and electrocution, thus making the property unsafe;
The seller had removed items from the tiny house, which were included in the contract price, namely cushions, throws, doormats, bathroom accessories.
…”
In addition, at paragraph [23] of the statement of claim, Ms Moussa also relied upon breaches said to be constituted by the failure of Ms Eather to supply an electrical safety certificate and proof of repairs or otherwise by a licensed electrical contractor.
Unhelpfully, the statement of claim did not link the paragraph [22] and [23] facts said to constitute breaches with specific terms of the contract as amended. Paragraph [23] simply identified they were breaches of the contract, including but not limited to the 18 March amendments, including but not limited to the numbered terms 6 and 7 of the 18 March amendments. I observe that the pleading was not settled by counsel. Further counsel who appeared on the appeal had not appeared at first instance.
At the hearing below, and solely for the purposes of that hearing, Ms Eather had accepted the assertions set out in paragraph [22] of the statement of claim and that they amounted to breaches of the contract, but argued at that hearing that none of the breaches were of Essential Terms.
Parties’ submissions on the matters raised in the notice of contention
a. Respondent’s submissions
As the appeal hearing proceeded on the grounds within the notice of contention, it is appropriate to commence with a review of Ms Eather’s submissions.
First, Ms Eather submitted that the alleged breaches relied upon by Ms Moussa were of contractual obligations which were expressly independent of Ms Moussa’s obligation in cl 2.5 and cl 5.3(1) of the contract to tender the Balance Purchase Price on the settlement date. It was said that cl 5.3(1) expressly provided that the payment by Ms Moussa was “in exchange for” specifically identified things, which included the unstamped Form 1 Transfer document in registerable form. In particular, Ms Eather relied upon the words “in exchange for” in cl 5.3(1) as constituting a phrase which defined and delimited the extent of Ms Eather’s dependent obligations vis-à-vis Ms Moussa’s obligation to pay the Balance Purchase Price.
Secondly, and consequently, it was submitted that the parties objectively intended that Ms Moussa’s obligation under cl 2.5 and cl 5.3(1) was not dependent on the alleged breaches. It was said that none of the 18 March amendments were expressly linked to Ms Moussa’s obligation to tender the Balance Purchase Price. It was further submitted that the phrase “in exchange for”, or words to a similar effect, were not present in the 18 March amendments so as to expressly link the obligations in the 18 March amendments to Ms Moussa’s obligation to pay the Balance Purchase Price.
Thirdly, it was said that none of the breaches relied upon went to the “whole of the consideration” or to “the root of the contract”. In this respect, “the root of the contract” was said to be the promise to deliver a transfer which, upon registration, would confer indefeasible title to Ms Moussa.
Fourthly, it was said of all of the breaches relied upon by Ms Moussa, that they were amenable to being appropriately compensated for by damages. It was submitted that from an objective perspective, the alleged breaches were trivial compared to the $1,575,000 payable for the property which was to be transferred. The alleged breaches were said to be able to be remedied through cleaning and repairs, with the cost then able to be recovered from Ms Eather as damages.
In reliance on the decision in Newcombe v Newcombe (1934) 34 SR (NSW) 446 at 450, Ms Eather submitted that a finding of interdependency between the alleged breaches and the obligation to pay the Balance Purchase Price would require an implied term to the effect that the obligations were interdependent. It was said that under the present law, that would require the five requirements of BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 to be present. It was submitted that such an implication would not be implied for two reasons.
The first of those being that the implication would be inconsistent with the express terms regulating the obligation to settle, namely cl 2.5 and cl 5.3.
b. Appellant’s submissions
First, Ms Moussa emphasised that the hearing below occurred on a summary judgment application brought under rule 293 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). Under that rule, a judgment should only be given if the court is satisfied that the plaintiff has no real prospects of success and there is otherwise no need for a trial. Ms Moussa pointed to the well-known statement by GN Williams JA in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235 to 236, which discusses the operation of rr 292 and 293 of the UCPR.
It was submitted that, in the present case, both of the criteria in r 293 could not be established by Ms Eather. This was said to be so because the case involved:disputed contractual construction issues, namely whether the 18 March amendments were Essential Terms or innominate terms capable of breach in a way which would have allowed the termination of the contract;triable factual issues involving the extent and seriousness of defects at settlement and the effect of the “as is” stipulation in the contract; andequitable relief in the form of specific performance, which by its nature required a full assessment of the conduct of the parties and the context in which it occurred.
All of these matters were said to be inapt for resolution on a summary judgment application.
Secondly, it was submitted that the respondent’s attempt to frame the issues as akin to a demurrer was misconceived. It was said that a true demurrer accepted the pleaded facts as correct and involved pure questions of law. Whereas here, it was submitted that the issues of whether the 18 March amendments were Essential Terms, or seriously breached innominate terms, or terms interdependent with the settlement obligation of Ms Moussa, could not be divorced from the factual context in which they were agreed.
Ms Moussa contended that the application did not involve the resolution of a bare question of construction in the abstract, but rather it was one which was intertwined with the question of whether the parties objectively intended the 18 March amendments to condition the settlement obligation. This was said to necessarily require a consideration of the full surrounding factual matrix.
Thirdly, it was submitted that there was contested evidence which concerned whether certain of the 18 March amendments (electrical safety, septic repair, gate operation) were performed “prior to settlement” and whether the respondent was ready, willing and able to settle. Those were said to be fact-ladened issues which bore directly on the question of interdependence and essentiality, and therefore, were said to be unsuitable for summary judgment.
Fourthly, Ms Moussa submitted that part of the commercial setting for the dispute included that the 18 March amendments, properly construed, treated the building and pest condition as having been satisfied, in return for a number of stated conditions requiring fulfillment “prior to settlement”. Ms Moussa’s forbearance from terminating under the building and pest condition was said to be the consideration for those time dependent obligations, and this was said to provide a context which supported interdependence with Ms Moussa’s payment obligation at settlement.
Resolution of the appeal
The judgment below ought to be upheld on the grounds raised in the notice of contention. My reasoning is as follows.
The starting point is the identification of the principles applicable to whether terms within a contract are interdependent on each other. These principles may be readily identified in two authorities.
The first is Kay v Playup Australia Pty Ltd [2020] NSWCA 33 where Brereton JA (with whom the other members of the court agreed) observed as follows:
“[62]Of course, ‘whether obligations are dependent or independent depends upon the intention of the parties’. In ascertaining that intention, “the more closely the obligations are linked to the rights, the easier it will be to construe the instrument as granting merely qualified rights”. Relevant considerations include the express provisions of the contract in respect of interdependence, the extent of any connection between the obligations, whether the respective covenants go to the whole consideration, whether breach of the obligation goes to the root of the contract, or whether breach may be compensated by damages.” (footnotes omitted)
“Where each of two parties to an indenture makes a covenant with the other, and the two covenants are not in terms connected, the question may arise whether they are independent (in the sense that each party is bound to perform his covenant irrespectively of whether the other performs his) or dependent (in the sense that one party is not bound to perform, or to continue to perform, his covenant unless the other has performed, or does perform, his, previously or concurrently or subsequently). In the absence of express provision in the deed, recourse must be had to implication. To raise an implication of dependency of covenants which are ex facie independent the ordinary conditions justifying the introduction of an implied term into a contract must be fulfilled. The implication must be one so obviously necessary to carry into effect the intention of the parties appearing on the face of the deed, treating them as reasonable men, that they must have agreed to its insertion as a matter of course had the point occurred to them. An implication of intention that the performance of one covenant shall be conditional on the performance of the other arises where the nature of the covenants is such that any breach of either of them would necessarily be regarded by reasonable men as absolving the other party from performing his covenant: Mills v. Carson (10 R.P.C. 9 at pp. 16, 17); Huntoon Co. v. Kolynos (Incorporated) ([1930] 1 Ch. 528 at pp. 548–9, 557–8, 563–4). But the question is in every case one of intention; and the rules laid down in the notes to Pordage v. Cole (1 Wms. Saund. 548) are merely guides to the discovery of intention, as, indeed, those notes plainly state: Roberts v. Brett (11 H.L. Cas. 337 at pp. 353–4). Ambiguous expressions in the deed will not serve to introduce dependency, where the covenants are otherwise independent and the general tenor of the deed supports the presumption that they are intended to be what they in form are — independent. In such cases, participial expressions such as “the plaintiff performing all the covenants on his part”: Boone v. Eyre (2 Wm. Bl. 1312), or even such an expression as “if the plaintiff shall perform all the covenants on his part”: London Gaslight Company v. Chelsea Vestry (8 C.B. (N.S.) 215) have been held not to be enough. On the other hand, ambiguous expressions may serve to implement an implication of dependency arising from the nature of the agreement: Bastin v. Bidwell (18 Ch. D. 238). Full force must, however, be given to an unambiguous and uncontrolled provision for dependency: “and if words are used in the contract so precise, express and strong, that such intention, and such intention only, is compatible with the terms employed, however inconsistent it may be with general principles of reason, a court can only give effect to such declared intention of the parties. The only question in each particular case is, whether such intention is so declared:” v. (3 Bing. (N.C.) 355 at pp. 369–370). It must be remembered that however plain and unambiguous words may be in themselves they are always capable of being controlled by an inconsistent context: v. (2 My. & Cr. 192 at pp. 202, 204); v. (8 C.B. (N.S.) 215 at p. 239).”
Further, it is relevant to note that Brereton JA in Kay v Playup did not agree with the proposition that clear words are necessary before a relationship of independence would be found.7 Ms Moussa’s submissions to the contrary ought to be rejected.
Unsurprisingly, the relevant question as to whether certain terms are interdependent is one of contractual interpretation, focusing on the text and context of the terms in question, so as to determine the objective intention of the parties.
Secondly, where the question before the court is one which turns on the proper construction of the contract, a summary judgment application pursuant to r 293 of the UCPR may well be an appropriate vehicle for disposing of the proceeding.
In this case, there is no support for a contention that there is some pre-contractual contextual material relevant to the construction question raised by the summary judgment application, which was not put before the Court. In particular, in relation to the 18 March amendments, all of the relevant communications concerning the formation of the amendments were in writing and were before the Court. Those communications have been set out previously.
For the above reasons, this appellate court is in as good a position as a trial court to properly construe the initial contract and the 18 March amendments.
Thirdly, the subjective pre-contractual intention or belief of one of the parties, uncommunicated to another party, will be irrelevant to the construction process. To the extent that Ms Moussa submitted to the contrary, that submission ought be rejected. The court will construe the meaning of the contract as at the time it was formed, or in the case of amendments, at the time they were incorporated into the pre-existing contract.
Fourthly, on the proper construction of the contract as amended, the obligations found in the 18 March amendments were not interdependent with the obligation of Ms Moussa to pay the Balance Purchase Price pursuant to cl 2.5(1) and cl 5.3(1). That is so for the following reasons:
Clause 5.3(1) of the standard REIQ contract expressly provided for the interdependency between the obligation on Ms Moussa to pay the Balance Purchase Price on the Settlement Date and Ms Eather’s obligations to deliver each of the documents identified in cl 5.3(1)(a) to cl 5.3(1)(e). The two separate groups of obligations were expressed to be “in exchange for” each other. This phrase as it appears in cl 5.3 provides expressly for the interdependency between the two groups of obligations.
The 18 March amendments do not contain the same, or a similar, express phrase which makes it clear that the obligation to pay the Balance Purchase Price was linked to the performance of one or more of the obligations within the 18 March amendments. It is true that within the 18 March amendments at numbered terms 2, 4, 5, 6 and 7 there were obligations to be met “prior to settlement”, however, read as a whole, the text of those numbered terms did not indicate the presence of an objective intention of the parties that the amendment obligations were to be interdependent with Ms Moussa’s obligation to pay the Balance Purchase Price at settlement. The phrase “prior to settlement” with the numbered terms merely indicated the time for performance.
I make the following observations about the individual numbered terms within the 18 March amendments: Term 1 simply reduced the purchase price by $5,000;Term 2 was a promise by Ms Eather to provide, prior to settlement, a list of items located at the property that the respondent was willing to sell to the appellant, which Ms Moussa would then have the first option to purchase;Term 3 was an obligation to cooperate with Ms Moussa, prior to settlement, about any questions she had regarding property, the animals on the property and the handover of the property;Term 4 was an obligation to remove a pool table in the rumpus room by the settlement;Term 5 was a promise to provide proof of completion of Special Condition 6 of the contract prior to settlement. Special Condition 6 as it appeared in the initial contract was not expressed as an interdependent obligation with Ms Moussa’s obligation to pay the Balance Purchase Price at Settlement;Term 6 was an obligation on Ms Eather to follow through (prior to settlement) with an existing insurance claim in relation to irrigation pipes and damage to the front gate auto systems;Term 7 concerned Ms Eather having a single live wire at the back of the shed terminated and a generator switch connected by a qualified tradesperson prior to settlement, and for evidence to then be provided of the same;Term 8 was a request for confirmation that the tiny house would be handed over in a turnkey condition including, but not limited to, the specifically identified items.
None of the above numbered terms could be said to go to the whole of the consideration or the root of the contract. Each of those terms, in my view, dealt with trivial matters, breaches of which could adequately be compensated for by damages. Ms Moussa’s concerns about the subject matter of these terms were objectively overblown. I do not accept that any of the numbered terms 2 to 8 within the 18 March amendments were Essential Terms of the contract, or innominate terms which were breached in a fashion which would have provided Ms Moussa with a right to terminate the contract. I will deal with this finding further below.
The fact that the consideration for the 18 March amendments was Ms Moussa treating the building and pest inspection special condition of the contract as having been satisfied was not a matter which played any role in the proper construction of the numbered terms within the 18 March amendments and whether they were interdependent with Ms Moussa’s obligation to pay the Balance Purchase Price at settlement. Ms Moussa’s submission to the contrary ought be rejected.
The reasoning of Keane JA (as his Honour then was) in Jeppesons Road Pty Ltd v Di Domenico [2005] QCA 391 does not assist Ms Moussa. That decision concerned the then standard REIQ contract, which was materially similar to that involved in the present appeal. The issue relevant to the decision on appeal was whether the vendor could terminate the contract for a purchaser’s failure to settle, if the vendor was not in a position to deliver the notice required to be delivered at settlement by cl 5.3(1)(d)(ii) of the standard terms of the REIQ contract. That required notice was one of the documents which was expressed to be “in exchange for” the payment of the Balance Purchase Price, pursuant to cl 5.3(1). As in the present case, it was the words in cl 5.3(1) “in exchange for” which expressly provided for the two obligations being interdependent. Ms Moussa’s submission that Jeppesons Road reaffirmed the proposition that in conveyancing contracts, obligations expressed to be performed by one party before or at settlement are interdependent with the counter party’s obligation to complete, ought be rejected.
Accordingly then, on the proper construction of the contract as amended, none of the numbered terms within the 18 March amendments were interdependent with Ms Moussa’s obligation to pay the Balance Purchase Price at settlement.
In addition to the interdependency argument, which Ms Moussa has not succeeded on, she also advanced the contention that Ms Eather was arguably in breach of an Essential Term, or in a serious breach of an innominate term so as to give Ms Moussa a right to terminate for that breach.
It was said that in such a circumstance, Ms Eather had not been ready, willing and able to perform the contract on the Settlement Date, regardless of Ms Moussa’s unpreparedness to settle on that date.
It is well established on the authorities that if such a circumstance existed, Ms Eather would not have been entitled to terminate for Ms Moussa’s separate failure to settle. That principle has been settled at an intermediate appellate level for some time. In Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd [2016] NSWCA 32, Beazley P, Sackville AJA and Emmett AJA summarised the principles as follows:
“[33]It is a fundamental principle of land law that a party who seeks to terminate a contract for breach of an essential stipulation, must itself be ready, willing and able to complete. As was explained by Reynolds JA in McNally v Waitzer [1981] 1 NSWLR 294 at 296, “the vendor must show that he is willing and able to provide the full consideration which is to pass from him at the due time”. See also Hutley JA at 303. The principle is well established and it is not necessary to review the authorities: this has been done many times in other cases. It is sufficient for the Court to refer to the following.
[34]In Malouf v Sterling Estates Development Corporation Pty Ltd [2002] NSWSC 920 Young CJ in Eq (as his Honour then was) observed, at [36]:
“If a vendor wishes to issue a notice to complete, it will only be able to do so, (a) if it is free from any relevant breach of contract which may have provided the purchaser a good excuse not to complete by the due date; and (b) it is able to proceed to completion and deliver to the purchaser all the purchaser is entitled to under the contract no later than the expiry of the notice to complete.” (emphasis added)
This statement was not disturbed on appeal: Sterling Estates Development Corporation Pty Ltd v Malouf [2003] NSWCA 278; 58 NSWLR 685 and has been approved in this Court: see Carrapetta v Rado [2012] NSWCA 202; 16 BPR 30, 997 at [25].
[35]To the same effect is the statement of Kourakis J in Kraguljac v A & B Property Developments Pty Ltd (No 2) [2012] SASC 1 at [92]. His Honour, after reviewing the authorities, observed, relevantly:
“…the effect of these authorities is as follows: … the party serving the notice must be in a position to perform any still executory obligations by the date he or she has nominated for settlement.” (emphasis added).”
“…In my view, the effect of these authorities is as follows. First, a notice to complete or settle can not effectively be relied on by a party who has himself or herself failed to perform an obligation on which the settlement is contractually dependent. In such a case the other party is not obliged to settle because, on a proper construction of the contract the condition on which the obligation rests has not been satisfied. Secondly, the party serving the notice must be in a position to perform any still executory obligations by the date he or she has nominated for settlement. In my view, it must also be the case that a party in breach of an essential term, or who has otherwise repudiated the contract, can not invoke contractual provisions which demand performance of the other party’s obligations on pain of loss of the benefit of the contract. That rule is necessary to avoid an otherwise irreconcilable conflict between the right to terminate, which is enlivened by a failure to comply with a notice to complete given by the contract, and the common law right to terminate of the other party.”
A party will be ready, willing and able to perform a contract, even if the party is in breach, so long as any such breaches are only of non-essential terms or innominate terms, breaches of which would not give rise to a right to terminate.
In Zahedpur v Idameneo (No 123) Pty Ltd [2016] QCA 134, P McMurdo JA (with whom the other members of the court agreed) relevantly expressed the principle at [44] as follows:
“…The performance of the contracts, if required in the respects alleged by the appellant, was not stated to be a condition precedent to the appellant’s obligation to perform them. And none of those breaches would have constituted a repudiation by the respondent. In general, a party in breach of a non-essential term is not prevented from rescinding for a fundamental breach or repudiation by the other party.” (footnotes omitted)
See also Roadshow Entertainment Pty Ltd v (ACN 053 006 269) Pty Ltd (1997) 42 NSWLR 462, 479-480 per Gleeson CJ, Handley JA and Brownie AJA; Gramotnev v Queensland University of Technology [2019] QCA 108, per Fraser JA, Brown and Ryan JJ at [207].
I am satisfied that the alleged breaches as pleaded in paragraphs 22 and 23 of the statement of claim are not breaches of Essential Terms of the contract, or serious breaches of innominate terms of the contract which would give rise to a right to terminate on the part of Ms Moussa.
As stated previously, the pleading is poorly drafted.
Despite this pleading deficit, it is possible to deal with the alleged breaches which have been emphasised by Ms Moussa in her submissions.
First, I refer to the pleading in paragraph 22 vii. of the statement of claim. It pleads that there was a 240 volt electrical cable running from the tiny house which was untrenched and hung along a fence, posing a significant safety risk of fire to the property and electrocution, thus making the property unsafe.
A photograph of this item was in the appeal book. It is a form of an extension cord plugged into a power socket on the back fence of the property, presumably then running to the tiny house. It is clear from the email of 23 April 2024 at 12.56 pm (set out below) that this cord was only discovered by Ms Moussa on 22 April 2024, a little over a month after the 18 March amendments were entered into. Clearly enough, the existence of this extension cord was no part of the 18 March amendment obligations. In particular, it had nothing to do with numbered term 7 of the 18 March amendments. That was correctly accepted by counsel appearing for Ms Moussa at the appeal hearing.
Next, in paragraph 23 of the statement of claim, there is a breach pleaded as follows, that “no electrical Safety Certificate had been provided by the Defendant to the Plaintiff, nor had the Defendant provided the Plaintiff with any proof of repairs or otherwise by a licenced electrical contractor”.8
The first part of the plea about there being a requirement for a Safety Certificate was baseless. There was no contractual obligation to provide an electrical Safety Certificate.
It is evident that this requirement was first requested by Ms Moussa on 23 April 2024 at 12.56 pm in an email from her solicitor to the solicitor for Ms Eather. It relevantly stated as follows:
“…iii.
Failure to provide sufficient evidence that the electrical works were completed to a standard required of electrical works by law.
In addition, our client has instructed us this morning as follows:
At her pre settlement inspection yesterday she discovered an untrenched 240v electrical cable for the tiny house (photo attached)
The buyer has instructed us that she requires an electrical Compliance Certified for the whole of the property, namely the entrance pole, residence, shed, tiny house and the pumps.”
It is patently clear that the provision of an electrical Safety Certificate for the whole property was not a requirement of the initial contract or the 18 March amendments, but rather was a non-contractual requirement first sought to be imposed by Ms Moussa on Ms Eather on 23 April 2024.
Next was the second part of the allegation from paragraph 23 set out above, namely that “nor had the Defendant provided the Plaintiff with any proof of repairs or otherwise by a licenced electrical contractor”.9 This plea seems to be a reference to numbered term 7 in the 18 March amendments. That term 7 provided for the completion of specific electrical works described as “the live wire at the back of the shed is to be terminated and a generator switch is to be connected”. Term 7 further provided that this work was to be completed by a qualified tradesperson prior to settlement and evidence of the same was to be provided.
In fact, the generator changeover switch had been installed prior to the 18 March amendments. It may have been that Ms Moussa’s complaint was subjectively that she had considered the switch to be loose. Ms Moussa swore to this in her affidavit. If that was her concern, that is not what term 7 was directed to. Term 7 imposed an obligation in the following terms, “a generator switch is to be connected”.
Invoices from Queensland Industrial Services were supplied by Ms Eather’s solicitors to Ms Moussa’s solicitors evidencing that the single wire referred to had been isolated and the generator switch had been previously connected.
Prior to settlement, Ms Moussa then complained that the invoices did not state the electrician’s licence number, and she requested this to be provided by an invoice that stated the electrician’s licence number.
The response made on behalf of Ms Eather was that the invoice did not require a licence number to be on it, but Ms Eather provided the electrician’s licence number.
The material in the appeal book contained a search of the licence number which showed the name of the electrical mechanic who held the licence.
On 22 April 2024, by an email sent at 3.18 pm, Ms Moussa’s solicitor acknowledged that the tradesperson who had performed the above electrical work in installing the generator switch and terminating the single electrical wire was a qualified tradesperson. However, the email went on to require a Compliance Certificate for the work.
Ms Eather had provided the invoices evidencing that the required work had been undertaken and had provided the licence number of the individual electrician involved. It had been acknowledged that he was a suitable tradesperson. In my view, the material provided was sufficient evidence of what was required by term 7, and it was not necessary for Ms Eather to further provide a Compliance Certificate for the work.
“6The seller will continue to follow through (prior to settlement) with the existing insurance claim in relation to damage caused to the irrigation pipes by a falling tree, and damage to the front gate auto systems;”
The pleaded breach based on a failure to repair was always misconceived. Ms Eather only had an obligation to continue to follow through with the insurance claim up to settlement. There is no suggestion that this did not occur. A cash offer was made to Ms Eather by the insurance company on 5 June 2024 in respect of items which included the electrical front gate and the septic system. That offer was made only after the settlement date. There had been a previous cash offer by the insurance company, but that had been for quite separate items. The alleged breach of numbered term 6 of the 18 March amendments was specious and misconceived in every respect.
It again represents Ms Moussa seeking to impose additional non-contractual requirements on Ms Eather.
As was recognised in Salcedo,10 rr 292 and 293 of the UCPR operate to facilitate the fair and just resolution of matters in dispute. The essential question called upon for determination is whether there is established some real prospect (as opposed to a fanciful prospect) of Ms Moussa succeeding at trial. If that is established, the matter must go to trial.
For the above reasons, I am satisfied that Ms Moussa had no real prospects of successfully prosecuting her case, or any part of it, and there was nothing else raised which required a trial. This was one of those cases where the court can be satisfied to the requisite high degree of certainty about the ultimate outcome of the proceeding, so as to justify judgment in favour of Ms Eather rather than allowing the matter to run to trial in the ordinary way.
As Ms Moussa refused to pay the Balance Purchase Price on 22 April 2024 and 24 April 2024, and as Ms Eather was ready, willing and able to perform the interdependent obligations required of her by cl 5.3(1) and cl 5.5, Ms Moussa was in breach of an Essential Term of the contract so as to provide Ms Eather with a right to terminate the contract pursuant to cl 9.1(1) of the contract.
In accordance with that right, Ms Eather did terminate the contract on 24 April 2024. Accordingly, the judgment below was correct both in dismissing Ms Moussa’s claim and giving judgment for Ms Eather on the counterclaim, with damages to be assessed.
Conclusion
In consequence of the reasons set out above, the judgment below is sustained on the grounds set out in the notice of contention.
The orders which should be made are:
Appeal dismissed.
The appellant to pay the respondent’s costs of the appeal.
Nothing turns on which of those two dates was the actual date for settlement. ↩
This refers to the term as defined in the standard REIQ contract. ↩
This refers to the term as defined in the standard REIQ contract. ↩
These portions of the document are precisely replicated, including any typographical errors. ↩
Paragraph [22] of the statement of claim, at p. 25 of ARB, Vol 1. ↩
And in the case of amendments, after the amendments were made. ↩
Kay v Playup Australia Pty Ltd [2020] NSWCA 33 at [65]-[66]. ↩
This portion of the statement of claim is precisely replicated, including any typographical errors. ↩
This portion of the statement of claim is precisely replicated, including any typographical errors. ↩
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232. ↩
Moussa
Eather [2026] QCA 45
(1977) 180 CLR 266
(1997) 42 NSWLR 462
Appeal dismissed. The appellant was ordered to pay the respondent’s costs of the appeal. The first-instance judgment dismissing the claim and giving judgment on the counterclaim, with damages to be assessed, was sustained.
The real issue in this appeal was therefore to be found within the ambit of the matters raised in the notice of contention.
The second being that the implication was not necessary for the business efficacy of the contract. It was submitted that the contract was perfectly efficacious if Ms Moussa, as the buyer, had completed the contract, and subsequently obtained the remedy of damages in respect of any of the alleged breaches of contract.
Fifthly, it was said of submissions made on behalf of Ms Moussa about her belief of the importance of the 18 March amendments, that they were irrelevant as they relied upon Ms Moussa’s subjective intention or understanding of the contract.
Further, it was submitted that subject to presently irrelevant exceptions, anything that was said or done by the parties after the contract was made6 was irrelevant to the construction of the contract.
It was submitted that in this commercial setting the 18 March amendments’ numbered terms were either:conditions precedent to Ms Moussa’s obligation to settle; orterms of a collateral, but interdependent, agreement.
It was said that on either view, Ms Eather could not insist on completion unless the amendment obligations had been performed before settlement.
Fifthly, Ms Moussa challenged the correctness of the respondent’s submission that Ms Moussa needed to imply a term into the contract to establish that the 18 March amendments were interdependent. It was said that such an implied term was not required, as certain of the 18 March amendments were expressed in a way which conditioned Ms Moussa’s obligation to settle. The interdependence was said to arise from the express language and structure of the 18 March amendments, as opposed to arising by reason of an implied term.
Sixthly, it was submitted that the decision of Jeppesons Road Pty Ltd v Di Domenico [2005] QCA 391 reaffirmed the proposition that in conveyancing contracts, obligations expressed to be performed by one party before or at settlement are interdependent with the counter party’s obligation to complete.
Relying on the decision of Jeppesons Road Pty Ltd v Di Domenico [2005] QCA 391, Ms Moussa submitted that the question was not whether the terms in the 18 March amendments were “Essential Terms”, but rather whether they were concurrent items to be performed “in exchange for” the payment obligation. Ms Moussa said that a party could not rescind unless that party was ready, willing and able to perform the contract at settlement. Ms Moussa submitted that it was not enough that a party was able to remedy an existing breach after the settlement time had passed.
It was said that the 18 March amendments fell fairly within the principles stated in Jeppesons Road and that the obligations within the 18 March amendments were not mere independent warranties.
Seventhly, it was submitted that the modern approach to the construction of contracts was one which favoured construing obligations as dependent unless the clear words of the contract indicated otherwise. Reliance was sought to be placed on Newcombe v Newcombe (1934) 34 SR (NSW) 446 and Kay v Playup Australia Pty Ltd [2020] NSWCA 33 for this proposition. It was submitted by Ms Moussa that certain of the 18 March amendments used the express phrase, “prior to settlement”. This phrase was said to unmistakably link the relevant amendment obligations with settlement. It was submitted that as a result, unless the contract had clear words of independence (which it was said not to have had), then the presumption was dependency.
Eighthly, in relation to Ms Eather’s reliance on the phrase “in exchange for payment of the Balance Purchase Price” as it appeared in cl 5.3, Ms Moussa submitted the phrase simply stated the ordinary principle that transfer of title and payment of price are concurrent and interdependent. Ms Moussa contended that this did not exclude or override the language of the additional amendments agreed to by the parties, which she said also pointed to interdependency.
Ninthly, it was submitted that the breaches alleged were neither minor nor immaterial as they involved:an exposed 240 volt live wiring;an unsafe generator switch wired into the electricity switchboard for the property;the performance of unlicensed electrical work;effluent discharge from the septic system, creating sanitation hazards; anda non-functioning electric gate, said to be a security risk.
It was submitted that the breaches included ones which went to the safety, the habitability and the insurability of the property being sold, and that these breaches could not be characterised as trivial. It was further submitted that even if the obligations within the 18 March amendments were to be analysed as innominate terms rather than Essential Terms, the question of whether those breaches were serious enough to justify termination was not one which was apt for determination on a summary judgment. Whether those breaches substantially deprived the appellant of the benefit of the contract required an evaluation of the evidence, not the assumption of triviality which was urged by Ms Eather. That evaluative inquiry was said to be quintessentially a triable issue and ought not be resolved without the testing of the evidence going to the nature and impact of the breaches.
It should be noted that Ms Moussa also filed amended submissions in reply shortly prior to the hearing of the appeal. At the appeal, counsel for Ms Moussa made clear that the amendments to the submissions were no longer relied upon.
Ms Moussa later withdrew the concession made by her solicitor that the work had been performed by a qualified tradesperson. With respect, there was no positive evidence led by Ms Moussa at the summary judgment hearing to support that someone other than the holder of the relevant licence.
For the purpose of the application, Ms Eather at first instance, and on appeal, had been willing to proceed on the basis of the work having been performed by an unlicensed worker. That seems to have been an overly generous concession on the evidence led on the application. Nonetheless, assuming the case to be so, that assumed state of affairs would not result in a breach, either of an Essential Term, or a serious breach of an innominate term so as to have provided Ms Moussa with a right to terminate the contract. The work involved for both items was minor and had actually been performed, albeit on the assumed basis that it was not performed by a licensed tradesperson.
Further, on 11 May 2024, Ms Eather subsequently had the then isolated wire and the generator switch examined by a different worker who was a licensed electrician. That later licensed electrician:looked at and then certified that the hot water circuit had previously been disconnected and was compliant; and inspected the generator switch that had been previously installed, tested it, and certified that it was compliant. The total cost for that inspection, testing and certification of the previously performed work was $176.00 (inclusive of GST). That was a trivial sum. All of these matters were evident from the invoice issued.
Any breach of term 7 of the 18 March amendments was trivial. The claims both in the affidavit and in the contemporaneous pre-termination correspondence of there being grave concerns for the health and welfare of potential inhabitants of the property were unsustainable and overblown.
Lastly, in paragraph 22 iii. of the statement of claim, there were allegations in relation to a failure to repair both the electric gate and a disconnected sewerage system.
Both of those items had been damaged during a storm. There was no obligation in the 18 March amendments requiring Ms Eather to repair either of those items. Her obligation was in the following terms: