High Court of Australia

Park v Brothers [2005] HCA 73

80 ALJR 317; 222 ALR 421

6 Dec 2005

Case Number: S226/2005


Gleeson CJ, Gummow, Hayne, Callinan, Heydon JJ


Vendor and purchaser – Sale of land – Purchasers entitled to possession prior to completion on conditions including requirement of vendor's approval – Vendor wrongly purported to rescind contract – Vendor denied purchasers access to land – Purchasers sued for damages for breach of access provision – Whether necessary for purchasers to seek vendor's approval notwithstanding purported rescission – Whether vendor's conduct waived condition of approval.

Contract – Construction of contract – Purchasers to have access to land prior to completion to farm in areas approved by vendor – Whether vendor required to act reasonably in granting or withholding approval.

Contract – Construction of contract – Implied duty to co-operate – Limits of operation of implication.

Practice and procedure – Appeal – Whether it is open to an appellate court to allow an appeal on a new ground that was not raised at trial and that, if raised, could have been the subject of evidence.

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