Cancellation

Synge v Synge

Before settlement date of a purchase of a house, the vendor sold the house to another purchaser. Although not expressly stated, it was clear from vendor's conduct that he was not going to perform the original contract.

Andas Finance v Te Kaha Hotel

Cancellation communicated by a third party may be effective.

Ingram v Patcroft Properties

Commercial lease - payment of rent to be made within 14 days of the first of the month. Lessor has right of reentry after that time. Tenant hadn't paid on the 13th day. Lessor re-entered. You lose the right to cancel if you are not willing to perform yourself.

Aerial Advertising Co v Batchelor Peas

Contract for aerial advertising. Supposed to check with BP every time before flying, but didn't check on Armistice Day. Breach was minor but consequences were huge for BP. Cancellation justified.

Mana Property Trustee v James Developments

Contract for purchase of '4.716Ha or less'. Final area of property must not be less than 4.715Ha. Actual subdivision was 4.69Ha. JD claims breach of an essential term. Ask whether, unless the term was agreed at the time of contracting to be essential, the cancelling party would more probably than not have declined to enter the contract. The term here was essential. But JD's cancellation was invalid. ∴ Appeal allowed.

Kumar v Station Properties

Contract for sale of a future apartment. K intended to on sell to a property management company. Market fell, and couldn't find a buyer. K wants to cancel the contract for repudiation through breach of terms. Options when cancelling under s7 (2): • Accept repudiation; • Cancel contract and sue for damages; • Sue for specific performance. Can't find repudiation lightly - must have unequivocal intention not to perform. Repudiation can be express or inferred from conduct. Partial repudiation is available under s7 (2), but is not enough to give right to cancellation - must go through s7 (3) or (4). Certificate of completion clause inessential - its purpose was satisfied another way. 1% fee was inessential as it was a small amount of money. Furniture and air conditioning packages in combination with the property management agreement were essential. Failure to perform cannot be adequately compensated through damages.

Starlight Enterprises v Lapco Enterprises

Contract to deliver travel bags at $3/bag. Seller delivered some bags, and then decided it couldn't continue at such a low price. Buyer claimed repudiation. Seller had just misunderstood the contract - thought they had the right to renegotiate the price. No repudiation - no 'downright refusal' to perform.

Morrison v Speedy Parcels Ltd

Failure to turn up for work after employer repudiated employment contract. Adequate notice of cancellation.

Le Page v Cunningham

Instruction to builder to stop work and send a final account. Adequate notice of cancellation.

Oxborough v North Harbour Builders

Issues with construction of a house. O sought legal advice. Clause in contact says that any disagreement goes to arbitration. O refused arbitration and went to court, asking for specific performance. Going to court itself doesn't amount to affirmation. In this case, NHB made it clear that they wanted the contract to continue and the builders to fix the problem. ∴ O's actions amounted to affirmation.

MacIndoe v Mainzeal

MacIndoe contract to buy a unit title in Mainzeal's property development. Purchaser to pay deposit + installments. Share market crash, unable to pay installments. Timely payment not agreed as essential at time of contract formation. Mainzeal gave notice to MacIndoe that time was of the essence - reasonable notice. ∴ Essential term. Substantial is similar to 'significantly' or 'considerably'. Objectively determined. Other purchasers' breaches can be considered when determining whether effects of breach are substantial.

White v Carter Council

McGregor had contract with CC to put advertisements on bins. Agreed that contract would be renewed, but then wanted to end the contract. Council didn't respond at first, but later sued for payment for advertising. M repudiated by backing out of the contract. This prima facie gave CC a right to cancel. But CC affirmed by not responding to the repudiation.

Garratt v Ikeda

P only paid part of deposit on time. V notified P and gave P time, then cancelled. P argued that the rest of the deposit didn't have to be paid. S8 (3)(a) only applies to obligations that are owed in the future. P did have to pay remainder of deposit.

Worsdale v Polgase

P only paid part of deposit on time. V validly cancels and sells to P2. V used part of P1's deposit to pay the real estate agent, and pocketed the rest. No automatic right to restitution.

Schmidt v Holland

Purchaser struggling to get finances together so would not be able to perform → repudiation. Vendor sold house to a third party. Vendor then wanted to sue P for damages. Vendor had right to cancel but didn't - didn't give notice before selling. ∴ Vendor himself repudiated.

Broadcasting Corp v Nielsen

Restraint of trade clause. Still effective after cancellation.

Auckland Waterbed Co v Progressive Finance

Statement made that cheque was being stopped in response to the other's breach. Adequate notice of cancellation.

McLachlan v Taylor

Threatened to find another buyer. Equivocal conduct consistent with contract remaining in force.

Thompson v Vincent

You can cancel for an insufficient reason if a sufficient reason exists, even if you didn't know about it at the time.