Immer (No 145) v Uniting Church in Australia Property Trust (NSW)

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Citation: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1992) 182 CLR 26

This information can be found in the Casebook: Paterson, Robertson & Duke, Contract: Cases and Materials (Lawbook Co, 11th ed, 2009), pp. 594-7 [25.60]

Contents

Background facts

  • Appellant [Immer] was buying land off Respondent [Uniting Church].
    • Transfer was subject to Respondent getting a council approval. If approval was not granted by a certain date, Appellant is entitled to terminate.
  • The approval was not obtained by the due date.
  • Without knowing that approval had not been obtained, the solicitor for the Appellant made arrangements (deed etc) for the transfer.
  • When the Appellant found out the approval has not been obtained, they notified the Respondent that the contract is terminated.
  • Respondent claimed wrongful termination.

Argument

  • Respondent claimed that the letter and arrangements constituted an affirmation of the contract and thus the Appellant forfeited its right to termination.

Legal issues

Judgement

  • Election is a process where the Aggrieved party is confronted with two choices. This case is a bit different because the choice whether to terminate was ongoing (was available from a certain date indefinitely as long as no affirmation was made)
  • Conduct cannot constitute affirmation if the Aggrieved party was unaware of the factual situation (i.e., that the situation calling it to make an election came about).
    • This roughly means that election cannot be made unconsciously on the facts.
  • In this context, the letter & arrangements simply meant that the Appellant is willing to continue the contract if the Respondent has now obtained approval, despite that it breached the time clause. If approval has still not been obtained, the Appellant was entitled to terminate, and it did.

Brennan J:

  • "A basic requirement of an election between alternative rights arising under a contract is that a party electing should know the facts which give rise to those rights[1]."
  • "An act amounting to an election must be equivocal[2]"
  • The Appellant acquired the right to terminate once the approval was not obtained by the specified date. They were then allowed to retain that right (as in, defer election) for as long as they want (as long as they don't do anything which equivocally constitutes affirmation).
  • Appellant wins.

References

  1. (1992) 182 CLR 26, 30
  2. (1992) 182 CLR 26, 30
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