In a significant decision of the Supreme Court of Queensland, Storey v Britton [2025] QSC 151, Freeburn J reaffirmed the importance of clarity, consistency and legal advice when navigating breach, termination and performance of contracts, particularly in residential property transactions.
This case provides a practical exploration of complex contractual doctrines, including repudiation, rescission, election, and the equitable remedy of specific performance. It also stands as a cautionary tale about the consequences of mismanaging contractual obligations and communications.
The plaintiffs, Mr and Ms Storey, entered into a contract to purchase a Sunshine Coast property from the defendants, Mr and Ms Britton, for $3.264 million. The contract, structured in three staged deposit payments, also included a side deed granting the Storeys “exclusive access” to the property from the time of the first deposit payment.
The first installment of $125,000 was due by 2 February 2024. The Storeys paid $90,000 on 1 February and the balance of $35,000 two days late, on 4 February. Notwithstanding the brief delay, communications between the parties (including texts from Ms Britton acknowledging receipt and expressing no concern) indicated the parties were proceeding with the contract.
Nevertheless, on 12 February 2024, the Brittons purported to terminate the contract for breach of an essential term. The Storeys resisted, asserting the Brittons had elected to affirm the contract through their conduct. The Court ultimately agreed.
Repudiation arises where one party evinces an intention not to be bound by the contract. However, the innocent party must then elect either to terminate or affirm the contract. The critical principle is that termination and affirmation are mutually exclusive — once a party affirms a contract, the right to terminate for that breach is lost.
Here, the Court found the Brittons had, through their words and conduct after the late payment, clearly elected to affirm the contract. Phrases such as “no problem at all” [at 11] and ongoing cooperation regarding keys and access were deemed inconsistent with termination.
The Court also rejected the Brittons’ argument that a purported termination on 12 February 2024 brought the contract to an end. Even if it had, the Court held that a party may revive a terminated contract by express agreement or conduct. A 1 March 2024 letter from the Brittons’ solicitors affirming the contract was admissible and effective in reviving any agreement that may have been previously ended.
For a party to obtain specific performance, they must demonstrate that they were ready, willing and able to complete the contract. The Storeys did so. The Court accepted the evidence of their conveyancer, including that funds were available and settlement was only thwarted by the Brittons’ refusal to cooperate.
Specific performance was granted, a powerful reminder that in real estate transactions, courts are prepared to enforce agreements where monetary damages would be insufficient, particularly where the property is unique and the breach was not fatal.
This case illustrates just how perilous it can be to act on instinct rather than legal advice in contractual disputes. The Brittons were not legally represented for much of the matter. They attempted to assert rights of termination without appreciating that their earlier conduct amounted to affirmation. They failed to heed the implications of their side deed granting exclusive access and misunderstood their obligations at settlement.
Likewise, issues such as mischaracterising access rights as trespass, confusing contractual clauses, and inconsistencies in evidence further undermined their position.
A properly advised party would likely have taken a very different course, including issuing notices in the appropriate form and timeframe, avoiding affirming conduct, and responding coherently to correspondence.
We regularly assist clients facing disputes about contract performance, termination and enforcement. Whether acting for buyers, sellers or business parties in high-value transactions, we provide clear strategic advice on:
I have personally advised on and acted in several disputes involving similar questions of contractual breach, interpretation of special conditions, and remedies for non-performance, including in Supreme Court proceedings. These disputes demand not only a technical understanding of the law, but also strategic judgment and strong advocacy.
Storey v Britton is a timely reminder that how a party responds to a contractual breach can determine the outcome of the entire dispute. Electing to affirm or terminate is not simply a matter of preference, it is a legally binding choice with real consequences.
If you are facing a dispute involving contractual breach, delay, or disagreement about access or settlement, we encourage you to seek legal advice early. The right decision at the right time can preserve your rights, and your deal.
Russell Hall
Associate
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