Australia, Nov. 12 -- The Federal Court of Australia issued the following judgement on Nov. 7:

1 By interlocutory application, the applicant seeks an injunction restraining the respondents from taking any further steps in a proceeding that they have brought against the applicant in the Australian Capital Territory Civil and Administrative Tribunal (ACAT). The underlying reason for that anti-suit injunction is that the applicant has a claim against the respondents arising out of the same underlying dispute which it quantifies in an amount substantially in excess of ACAT's jurisdiction with the result that ACAT cannot determine both the respondents' claim against the applicant and the applicant's claim against the respondents. Instead, the applicant has commenced a proceeding in this Court on its claim. If the anti-suit injunction is not granted, there is a risk of conflicting outcomes in the two separate proceedings in relation to the same underlying dispute.

The facts

2 On 26 March 2022, the applicant issued a "Company Overview + Tender Proposal" to the respondents with respect to the construction of a home on a property referred to as Block b Section BJ in Macnamara, ACT. The applicant's statement of claim avers that that was part of a "house and land package" offered by the applicant for the sum of $1.1m of which $400,000 was for the land and $700,000 for the construction.

3 On 1 April 2022, the applicant and the respondents concluded a Master Builders ACT home building contract for the construction of a house on a site described as "TBC" for a total contract sum of $699,400. A deposit of 5% was payable, ie $34,970. The respondents paid that deposit on 12 April 2022.

4 At that time, there was no contract for the purchase of the site. The applicant's explanation for that which it subsequently gave to ACAT is that the land had not yet been developed so the only title particulars at the time of entering into the construction contract were those reflected in the tender document. It says that it is standard for a house and land package contract to include only a floor plan and elevations as further detail cannot be provided until site inspections are undertaken.

5 On 13 September 2022, the respondents wrote to the applicant saying that recent events had caused huge mental and financial stress on them and that the planned investment property would be "hard to afford at this point with recent changes in personal and overall economic conditions." They said that they could not afford the property and asked what the process was to obtain a refund of the deposit that they had paid.

6 On 9 December 2022, the respondents followed up their request for the return of their deposit. They said that they could definitely not proceed. On 20 December 2022, they sent an email to the applicant saying that no land contract had been signed, and that the land had not yet been released.

7 On 12 September 2023, a year after the respondents had first said that they cannot proceed with the contract, the applicant wrote to the respondents saying that the land release was occurring and that it would be "sent" for settlement on 20 September 2023. The respondents replied on 19 September 2023 again saying that they would not proceed. The applicant followed up on 12 October 2023, complaining that the land contract had been sent to the respondents but that the applicant had not heard back from them. The applicant sent several further follow-up emails in November and December 2023.

8 On 15 December 2023, the respondents wrote to the applicant saying that they had no intention of proceeding and again requested a refund of the building deposit that they had paid.

9 On 20 February 2024, solicitors for the applicant wrote to the respondents outlining much of the history canvassed above and asserting that the respondents' communications saying that they did not intend proceeding with the building contract amounted to a repudiation. The solicitors stated that they accepted the repudiation on behalf of the applicant and thereby terminated the building contract. The solicitors went on to say that the applicant was currently quantifying its loss and damages, that initial calculations showed that they would exceed the deposit and that the applicant would therefore retain the deposit in part satisfaction of its expected loss and damages.

*Rest of the document and Footnotes can be viewed at: (https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2024/2024fca1296)

Disclaimer: Curated by HT Syndication.