Most Read Contributor in New Zealand, September 2016
Many contracts allow for termination if a breach remains
unremedied, or is irremediable.
But the UK Supreme Court's judgment in
Telchadder v Wickland Holdings Ltd provides an important
reminder that redress is possible on a broken contractual promise -
even where the breach cannot be undone.
In June 2006 Mr Telchadder (Mr T) – a
"somewhat eccentric" man – entered into a
licence to lease a mobile home site at Meadowview Park, Essex,
under which he undertook not to annoy or disturb the other
Meadowview Park's owner, Wickland Holdings Ltd, could
– subject to court approval – cancel Mr T's licence
if he breached a term of the agreement and "after service
of a notice to remedy the breach, has not complied with the notice
within a reasonable time".
In July 2006, dressed in camouflage clothing and with camouflage
netting over his head, Mr T jumped out from behind a tree at
another resident, Miss Puncher, startling her.
Wickland wrote to Mr T telling him that he was on no account to
mask or obscure his face in any area of the park outside his home
or to make unsolicited approaches or advances to other residents.
If he did, Wickland would apply to have his licence terminated and
to remove him.
Mr T behaved himself - until July 2009, when he jumped out at
two women and threatened to kill them and another resident who
The County Court held that Wickland was entitled to terminate Mr
T's occupancy on the strength of the July 2006 notice, a
finding which the Court of Appeal upheld. The key issues for the
Supreme Court on appeal were:
whether Mr T could remedy his July 2006 breach, and
whether his good behaviour for "a reasonable
time" did so.
Wickland argued that Mr T could not undo the fright and anxiety
he had caused Miss Puncher. He could not, in Lord Wilson's
words, "unstartle" her. This was quite different
to, for example, failing to pay licence fees when due, which would
be remediable by paying arrears plus interest.
On that basis, Wickland said the July 2009 episode entitled it
to terminate Mr T's licence.
But the majority of the Supreme Court disagreed, holding that
the "answer is to be found by a practical inquiry whether
and if so how the mischief from Mr T's breach could be
Mr T could – as Wickland's notice implied –
redress his breach by committing no further anti-social behaviour
for a reasonable time. His relatively good behaviour for the three
years from July 2006 was enough to satisfy this test.
The Court's solution is consistent with a long line of
authority and recognises that an adequate remedy doesn't always
require that things be put back the way they would have been had
there been no breach.
Commercial contracts often include clauses which entitle a party
to cancel the contract in the event of a breach if on receipt of
notice the other party fails to remedy the breach within a certain
period. Contracts sometimes also provide that 'material'
breaches which are not capable of being remedied give rise to an
automatic termination right.
But the UK Supreme Court reminds us that to rely on either type
of provision is no slam dunk and that a breaching party may remedy
in other ways breaches which cannot be undone.
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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Anyone with standard form contracts who deals with small business must review the contracts for potential unfair terms.
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