Carr v JA Berriman Pty Ltd

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Citation: (1953) 89 CLR 327

This information can be found in the Casebook: Paterson, Robertson & Duke, Contract: Cases and Materials (Lawbook Co, 11th ed, 2009), pp. 542-555 [21.400].


Background facts

  • Plaintiff [Carr, building owner] hired the Defendant [Berriman, builder] to build a building for him.
    • Plaintiff was to make certain preparations (excavations) by himself and then let the Defendant build on the land starting from a set time.
    • Plaintiff was to acquire steel and the Defendant was to fabricate it.
  • Come the set time, the Plaintiff did not make the preparations. Moreover, the site was covered in heavy machinery.
  • The Plaintiff also notified the Defendant that it found a third party to fabricate the steel for him, despite knowing that the Defendant already accepted a tender for the fabrication of steel.
  • The Defendant considered the Plaintiff's conduct as two breaches and terminated the contract. The Plaintiff brought an action for wrongful termination.

Legal issues


  • There were two breaches of the contract - the failure to make arrangements and the deliberate decision to do the steel work with a third party despite what was decided in the contract.
  • The conduct of the Plaintiff in both cases amounted to repudiation - he has given the Defendant β€œthe right to believe that the contract would not be performed according to its true construction[1]” and that "he did not intend to bound by the contract within the meaning of the authorities[2]"
  • The Plaintiff can argue both that he didn't intend to repudiate his obligation to make the preparations (heavy rain out of his control stopped him from moving the machinery and making preparations) and that the Defendant forfeited his right to terminate for that breach because he kept on going with the contract.
  • However, the second breach is deliberate and definite repudiation. It also has even greater force combined with the first breach to display utter repudiation on behalf of the Plaintiff.
  • Thus, the Defendant had the right to terminate.


  1. ↑ (1953) 89 CLR 327, 351
  2. ↑ (1953) 89 CLR 327, 350
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