Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Pillay v Mohandas [2022] FJHC 69; HBC53.2019 (11 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 53 of 2019

BETWEEN: AVINESH PILLAY of California, USA and Businessman.

PLAINTIFF

AND: RAVI ASHNI MOHANDAS aka RAVI ASHNI, SUBDA ASHNI LA-VITA and RAJESH NARAYAN all of 4 Ferndale Road, Ravesby, NSW 2212, Australia, Occupation unknown to Plaintiff.

DEFENDANTS

Counsel : Plaintiff: Mr. Ali. S & Mr Sushil. P

: Defendants: Ms. Singh. K
Hearing Date : 12.12.2021
Date of Judgment : 11.02.2022

JUDGMENT

INTRODUCTION

1. Plaintiff had entered sale and purchase agreement relating to a ‘Crown Lease 4213 being Lot 82 on Plan S683 Munivatue Subdivision’ (the Property) with Defendants. This agreement was subject to obtaining consent of Director of Lands. The obligation was on the part of Plaintiff to obtain that consent. At the time of entering Sale and Purchase Agreement the Property was vacant but it contained a house. Defendants allege that after entering in to Sale and Purchase Agreement, Plaintiff had forged several letters to Director of Lands in order to obtain the consent of Director of Lands. Apart from that Plaintiff had also sub-let or licensed third parties to occupy the premises and this had resulted breach of ‘repudiatory’ conditions contained in Crown Lease and Sale Purchase Agreement. Plaintiff had visited the premises and seen occupants on the Property. The consent of Director of Lands obtained through fraud and or misrepresentation. The consent of Director of Lands was fraudulently obtained hence it is void. The application for specific performance fails on want of condition precedent and or due to fraud and misrepresentation of Director of Lands and Defendants. Apart from this the relationship between Plaintiff and Defendant had deteriorated by Plaintiff’s fraudulent conduct, hence it is in equitable to grant specific performance. The burden of proof of such a condition that it would make inequitable to force specific performance was with Defendants, depending on circumstances and this was done. Due to repudiatory breach of conditions in the Sale and Purchase Agreement is cancelled.

FACTS

2. Following facts were admitted in the pre-trial conference,
   
   1. Plaintiff at all time material to this action was the prospective purchaser of the Property.
   2. Defendants were the registered proprietors.
   100. On 8.5.2012, Sale and Purchase Agreement was entered regarding the Property.
   4. Defendants in 2014 had executed the instrument of transfer of the Property in favour of Plaintiff.
   5. Plaintiff lodged a caveat on the Property.
      
3. Defendants’ reasons for refusal to transfer the property are;
   
   1. Plaintiff had failed to pay the deposit of $25,000 in terms of Sale and Purchase Agreement.
   2. Plaintiff had forged letters to Director of Lands, bearing forged signatures, to obtain consent for the transfer.
   100. Plaintiff had sublet the premises to third parties and collecting rentals without consent from Defendants.
        
4. Plaintiff gave evidence and denied that he forged any document to obtain consent of Director of Land.
   
5. He said that he did not have original of the letters where signature was denied as they were all scanned and emailed to him, as first named Defendant was abroad.
   
6. Plaintiff in his evidence said that emails that attached purported letters marked as D5 and D6 were deleted as they were office emails, but he said such emails were all emailed to his solicitors at that time, but not to Defendants’ solicitors.
   
7. Plaintiff had not emailed any email he received relating to D5 and D6 to Defendants’ solicitors and this was admitted by him.
   
8. He said that he was real estate broker and held valid licence. He said that he knew first named Defendant prior to Sale and Purchase Agreement.
   
9. Plaintiff contradicted paragraph 15 and 16 of his statement of claim and said there were no funds accrued from management of the Property. Plaintiff could not produce any accounts of the management of the Property.
   
10. According to his evidence through there was a requirement to deposit $25,000 upon settlement of Sale and Purchase Agreement this was not done through mutual agreement.
    
11. The Property was vacant when the Sale and Purchase Agreement was settled.
    
12. For Defendant first named Defendant gave evidence and a law clerk of law firm also gave evidence.
    
13. First named Defendant denied that she signed any of the documents D5 or D6.
    
14. She also said that D6 was brought to her notice by a law clerk as a copy of that was left with them by Plaintiff.
    
15. She further said that she visited Fiji 2016 and having observed that the Property was rented by Plaintiff and that he had forged a letter D6 instructed her lawyers to cancel Sale and Purchase Agreement. She said that D5 which was another forged letter by Plaintiff came to her notice in 2018.
    
16. In the evidence further said having discovered that there were already occupants on the Property she had inquired about it and had come to know the occupants were Plaintiff’s sub tenants or licencees.
    
17. While she was abroad she was informed about breaches of Crown Lease due to sub tenants occupying this. Accordingly, first named Defendant communication from the Lands Dept regarding breach was received in early part of 2016.
    
18. It was also said that the Property was occupied by a third party and when inquired from them they had revealed that Plaintiff had sublet it.

ANALYSIS

19. Plaintiff was seeking specific performance of Sale and Purchase Agreement. Sale and Purchase Agreement was entered between Plaintiff and Defendants on 8.5.2012.
    
20. There was no dispute that Director of Lands consent was a condition precedent to said agreement and this consent was also purportedly obtained on 7.2.2018. I used the word purportedly due to fraud and misrepresentations of Plaintiff in order to obtain it, which was discussed later in detail.
    
21. According to said sale and purchase agreement upon execution of the said agreement a deposit of $25,000 was required to be paid to the Agent, and in this case solicitor’s trust account.
    
22. It was again an admitted fact that Plaintiff did not pay this amount. So Plaintiff had breached a repudiatory term of Sale and Purchase Agreement.
    
23. Plaintiff in his evidence said this condition was not complied by him as parties have mutually deviating from that written condition on the Sale and Purchase Agreement.
    
24. Plaintiff giving evidence admitted that Sale and Purchase Agreement was conditional and all these were to obtained at the cost of Plaintiff, in terms of it. The Clause 4 had following conditions and they were:
    1. Consent of the Director of Lands
    2. Engineer’s certificate
    100. Valuation of the property.
         
25. From the above conditions Plaintiff had obtained purported consent of Director of Lands. I used the words purported as there were allegations of fraud and or misrepresentation in the said consent obtained. This consent was tainted with fraud and misrepresentation of Plaintiff, hence voidable.
    
26. Plaintiff and Defendants, in evidence admitted that there were breaches of conditions of Crown Lease. Both parties admitted that Property was vacant when Sale and Purchase Agreement was signed.
    
27. The alleged breaches of conditions were subletting of the Property. These breaches were informed to first named Defendant while she was abroad around 2016. She had visited the Property also in 2016 and observed herself that there were some occupants.
    
28. According to Sale and Purchase Agreement the Property was vacant and Plaintiff in his evidence also stated that. He being a property agent must know the conditions of the Crown Lease where under clause 2 of said Crown Lease 4213 expressly prohibit subletting of the premises without ‘written consent of the lessor (i.e Director of Lands) first had and obtained’.
    
29. First named Defendant in her evidence said that she was informed about breaches of the condition of the Crown Lease while she was abroad and could not find more details about it over tele-conversation with relevant government department.
    
30. She said that she had visited Fiji for a private reason, in 2016, and had visited the Property and found that there were tenants and or occupants, on the Property. These tenants were not known to her and upon inquiry was informed that they were there with the instigation of Plaintiff.
    
31. The witness further said she refrained from directly confronting Plaintiff on this issue due to his nature, but went to her solicitors and informed about this illegal act of Plaintiff. She also said her solicitor was on leave at that time , but was informed about a purported letter she had written to Director of Lands dated 23.6.2016 .
    
32. She was surprised to hear about such a letter and had inquired from law clerk as to its existence and how it was delivered to law firm. She said a copy of this letter was shown to her by a clerk of law firm.
    
33. The law clerk in her evidence confirmed above position and said letter was ‘dropped off’ by Plaintiff without any covering letter and she had informed about this letter to solicitor in carriage of the matter, who was on leave. She was also informed to request and wait for original as Director of Lands will need the original, not a copy. So, she had kept the copy of purported letter marked D6 in the file relating to Defendants’ Sale and Purchase Agreement.
    
34. She said that upon advice of solicitor, Plaintiff was asked to send the original of D6. She confirmed that Plaintiff had told that he received it through an email.
    
35. This law clerk also gave evidence and said letter of 23.6.2016, which was marked as D6 was shown to first named Defendant and she had denied providing such letter to Plaintiff.
    
36. Plaintiff did not produce original of the said letter, he said this letter was received via an email as a scanned copy. Plaintiff in cross examination could not prove such an email was received with the signature as in D6.
    
37. The signatory of the letter said that she never wrote such a letter, and she saw this letter for the first time when she came to complain about Plaintiff’s action of subletting of the Property.
    
38. In the cross examination it was proved that Defendant’s version was proved on balance of probability.
    
39. In evidence witness explained how surprised she was regarding this document marked D6 and later had come to know that there was another fraudulent letter marked as D5 dated 23.6.2016, which was addressed to Director of Lands and stated,

‘This is to confirm that Avinesh Pillay of Property Pro Realtors Limited is acting as our agent in Fiji Islands to manage and lease our properties being Crown Lease No CL 4213 and CL 2108 both situated in Suva Fiji Islands

We have authorized him to execute the Tenancy Agreement or leasing agreement on our behalf.

.......’

40. There was no need to engage Plaintiff as agent as Defendants were going to sell the property to him and the property was vacant at the time of settlement of Sale and Purchase Agreement.
    
41. The purported signatory of above letter denied her signature. Plaintiff had failed to produce any email correspondence regarding this letter or the email that attached it.
    
42. Plaintiff’s position was that all emails were deleted. He said that he had emailed the emails regarding these letters to his then solicitors and had not taken an effort to find out whether such emails were available with the solicitors who acted for him at that time.
    
43. Plaintiff being an experienced person in property transactions, should have emailed any email that he received directly to solicitors of Defendants. There was no reason not to do it. This proves that there was no email from Defendants that attached D6 or D5
    
44. On the balance of probability it was proved that Plaintiff had illegally sublet the Property. When this fact was discovered by lessor Plaintiff had misrepresented lessor through letters marked D 5 and D6.
    
45. In the circumstances the purported consent of Director of Land was obtained by Plaintiff through fraud and or misrepresentation and void in law.
    
46. As such no specific performance of Sale and Purchase Agreement can be granted on a null and void consent and no legal force can attached to it.
    
47. Plaintiff had installed some third parties on the Property, too. This was not done with consent of Plaintiff or lessor.
    
48. Defendant had failed to prove her counter claim for rentals prior to Sale and Purchase Agreement for the Property as no evidence regarding consent of Director of Land regarding subletting produced. There were no evidence regarding rentals and duration too. So the counter claim was not proved on the balance of probability.
    
49. Defendants had claimed for rentals on approximate rentals after entering in to the Sale and Purchase Agreement. This claims was bad in law due to illegality of subletting without written consent of Director of Lands and also lack of evidence to support the claim.
    
50. Defendant is seeking cancellation of Sale and Purchase Agreement. Specific Performance is an equitable relief. It is clear that Defendants do not wish to sell the Property to Plaintiff and the relationship had broken due to the fraudulent actions of Plaintiff.
    
51. Halsbury’s Laws of England – Specific Performance (2017) Vol 95 – Factors Relevant to Grant of Specific Performance – Unfairness

“There may be circumstances in the position or mental state of the party against whom specific&#160ormance i160;is sought which r ider it inequitable that the court should force him to perform his contract. The burden of proof lies on the party against whom specific peance&is sotght ta establitablish such circumstances^[1]. He musw thais the victim of equitable fraud;on the part of the othe other party, 'fraudfraud' in ' in its equitable context meaning an unconscientious use of the power arising out of the circumstances and conditions of the contracting parties^[2]”(emphasis is mine)

52. Since Specific Performance is an equitable relief, upon proof of grounds that it was inequitable to grant specific performance it can be refused. In this action the burden was with Defendants to prove that it was inequitable to order specific performance as Sale and Purchase Agreement was and admitted fact and purported consent of Director of Lands was also granted on 7.2.2018.
    
53. So was it inequitable to grant specific performance on subsequent conduct of Plaintiff? The short answer was that Plaintiff had committed fraud and misrepresentation, to Defendants and also in obtaining consent of Director of Lands which was a condition precedent for the Sale and Purchase Agreement.
    
54. The evidence of first named Defendant was truthful and in the cross-examination affirmed that she did not signed letters marked D5 and D6 which were purportedly written to Director of Lands in order to obtain Director of Land’s consent. Plaintiff was a registered property agent in Fiji and should have known importance of email communications regarding Sale and Purchase Agreement for future litigation and or reference. So his answer that all emails regarding these letters were deleted cannot be accepted on test of probability. His knowledge and skill in the field of property transactions does not support his version of events.
    
55. If the Defendants were able to prove ‘equitable fraud’ court can refuse specific performance. Defendants in this action had proved on balance of probability Plaintiff had committed fraud and misrepresentation in order to obtain consent of Director of Lands.
    
56. Apart from that Plaintiff had committed illegal act of subletting the Property. This was proved from the communication received from Director of Lands to Defendants regarding breaches and purported letters submitted by Plaintiff to Director of Lands. These letters indicate that the Property was already being occupied by people known to Plaintiff at his instigation. He was fraudulently trying to justify it to Director of Land stating that the occupants were not tenants but a party known to Defendants, in order to preserve it being vandalized. (see D5)
    
57. Plaintiff was the prospective owner and if there were squatters, he would be the first person to let that known to Defendants and take steps to evict them. So conduct of Plaintiff substantiate Defendant’s version of subletting the Property by Plaintiff.
    
58. These acts deny any equitable relief to Plaintiff. So specific performance cannot succeed.
    
59. So on balance of probability the purported letters addressed to Director of Lands were not made by the signatory of the said letters marked D5 and D6. These were fraudulent acts. Apart from this he had illegally and without consent of Defendants and Director of Lands sublet the Property.
    
60. These acts are inequitable to force Defendants to perform and to transfer the Property in terms of the Sale and Purchase Agreement.
    

Cancellation of Sale and Purchase Agreement

61. An innocent party who was not in breach of Sale and Purchase Agreement can seek cancellation of Sale and Purchase Agreement on such breach. It is also futile to refuse specific performance and leave the action without cancellation of unenforceable Sale and Purchase Agreement.
    
62. Haulsbury Laws of England states (356. Rights of innocent party in case of repudiatory breach: in general. (Haulsbury Laws of England (Volume 22- Contract(2019))- Discharge by Termination on Breach)

“A distinction must be drawn according to whether or not performance of any promise was due before the repudiatory breach occurred; since in no case does the breach of contract terminate that contract ab initio. Rights which have already accrued before termination remain unaffected^[3]. Thus the innocent party (B) remains entitled to damages in respect of prior breaches by A^[4], and may recover in restitution any money he has paid A where there has been a total failure of consideration^[5], or as regards any benefit conferred^[6]. At common law, A as the party in breach is entitled to damages in respect of any prior breach by B^[7], though he will not be able to recover any forfeitable deposit^[8] unless there has been a total failure of consideration^[9]; but equity may grant some relief against forfeiture⁹.

A repudiatory breach of contract by A^[10] will not of itself have the effect of discharging the contract de futuro.^[11] Rather, it has the effect of giving the innocent party (B) a prima facie right to elect^[12] whether he will treat the contract as at an end or as still on foot as regards future obligations in it^[13]. The contract does not come to an end and therefore, in assessing damages, the court will have to have regard to its terms^[14], including those obligations due to be performed subsequently^[15] and any exemption clause^[16] or liquidated damages clause^[17]. Disputes arising from the contract continue to be governed by any arbitration clause^[18].”

63. In this action repudiatory breach happened after settlement of Sale and Purchase Agreement but before transfer of the Property to Plaintiff in terms of that. The agreement was subject to consent of Director of Lands. Obtaining consent of Director of Lands by misrepresentation of facts and fraud was not only a failure to fulfill condition precedent, but it also constituted a ‘repudiatory breach’. So Defendants had the option of cancellation of Sale and Purchase Agreement with Plaintiff. Hence their request for cancellation of sale and purchase is allowed on breach of condition precedent and also fraud and misrepresentation against Defendants.
    
64. Plaintiff had sublet or allowed third parties to occupy the Property which was breach of sale and purchase agreement. This was occupation or letting premises for occupation before Plaintiff becomes a proprietor of the Property. This was also a violation of Sale and Purchase Agreement where possession was obtained through fraud and misrepresentation of Defendants.
    
65. It is inequitable to allow Sale and Purchase to remain, considering fraudulent conduct of Plaintiff. These acts of Plaintiff were repudiatory breaches of Sale and Purchase Agreement, so it is cancelled for the reason given in this judgment.
    
66. The non payment of deposit amounting to $25,000 was a breach of condition in the sale and purchase agreement. According to Plaintiff there was a mutual agreement between parties that this payment of deposit was waived.
    
67. Plaintiff was a professional Estate Agent who held licence. He should be aware of Clause 21 of Sale and Purchase Agreement which expressly prohibited variations from it without written consent by parties to the Sale and Purchase.
    
68. Clause 21 of Sale and Purchase Agreement states
    

“This Agreement shall not be changed or modified in any way subsequent to this execution except in writing signed by the parties”

69. Plaintiff admitted that he had not paid deposit in terms of Sale and Purchase Agreement. This was an additional reason to cancel it.
    

CONCLUSION

70. Specific Performance is an equitable remedy. Plaintiff had committed fraud and misrepresentation. He had even obtained possession of the Property through third parties being sublet or licensing their occupation, before transfer of the Property. It is inequitable to grant specific performance to Plaintiff due to his fraudulent conduct against Defendants. By the same token, no specific performance can be granted on fraudulently obtained consent of Director of Lands. Obtaining consent of Director of Lands was condition precedent to transfer the Property. Plaintiff had breached conditions of the Sale and Purchase irrevocably. Sale and Purchase Agreement is cancelled. Defendant’s counterclaim is dismissed for reasons given. Cost of this action summarily assessed at $2000 to be paid by Plaintiff to Defendants within 28 days.

FINAL ORDERS

1. Plaintiff’s claim for specific performance is struck off.
2. Defendant’s counter claim is struck off.

100. Sale and Purchase Agreement entered between the parties, on 08.05.2012 is cancelled.

4. Cost of $2000 is granted for Defendants to be paid by Plaintiff within 28 days.
   

Dated at Suva this 11^th day of February, 2022.

.....................................

Justice Deepthi Amaratunga

High Court, Suva

^[1] Broughton v Snook [1938] Ch 505 –513, [1938] 1 All ER 411–419. Cf Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362 at 428–
429 (Aust HC).
^[2] Earl of Aylesford v Morris [1873] UKLawRpCh 28; (1873) 8 Ch App 484 –491; Hart v O' Connor [1985] UKPC 1; [1985] AC 1000 , [1985] 2 All ER 880,
PC. See equitable jurisdiction vol 47 (2021) para 30.
^[3] McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457 at 476–477, Aust HC; Johnson v Agnew [1980] AC 367, [1979] 1 All ER 883, HL; Damon Cia Naviera SA v Hapag-Lloyd International SA, The Blankenstein, The Bartenstein, The Birkenstein [1985] 1 All ER 475, [1985] 1 WLR 435, CA; Odfjfell Seachem A/S v Continentale des Petroles et D'Ivestissements, The Bow Cedar [2004] EWHC 2929 (Comm) at [34]–[35][2004] EWHC 2039; , [2005] 1 All ER (Comm) 421–[35][2004] EWHC 2039; , [2005] 1 Lloyd's Rep 275 at [34]–[35].
^[4] Such as a broken promise to pay a deposit: Damon Cia Naviera SA v Hapag-Lloyd International SA, The Blankenstein, The Bartenstein, The Birkenstein [1985] 1 All ER 475, [1985] 1 WLR 435, CA.
^[5] Fibrosa Spolka Akcyjna v Fairbairn Lawson Coombe Barbour Ltd[1942] UKHL 4; [1943] AC 32, 65[1942] UKHL 4; , [1942] 2 All ER 122, 138, HL; Kwei Tek Chao v British Traders and Shippers Ltd[1954] 2 QB 459, [1954] 1 All ER 779.
^[6] B may be able to recover quantum meruit or quantum valebat for goods handed over or services rendered: see PARA14; and restitution and unjust enrichment vol 88 (2019) para 513 et seq.
^[7]In practice, any such damages are likely to be exceeded by B's own claim for damages, especially as B may also claim as damages losses flowing from the premature termination of the contract: see PARA357.
^[8] Fitt v Cassanet [1842] EngR 1086; (1842) 4 Man & G 898. However, he may be able to recover a part-payment: Dies v British and International Mining and Finance Corpn Ltd[1939] 1 KB 724.
^[9] Stocznia Gdanska SA v Latvian Shipping Co[1998] UKHL 9; [1998] 1 All ER 883, [1998] 1 WLR 574, HL
^[10] Ie a repudiatory breach: see PARA344
^[11] The idea of a frustrating breach which renders further performance of the contract impossible in Harbutt's Plasticine Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447, [1970] 1 All ER 225, CA; Eastman Chemical International AG v NMT Trading Ltd and Eagle Transport Ltd [1972] 2 Lloyd's Rep 25 does not appear to survive the reasoning of the House of Lords in Photo Production Ltd v Securicor Transport Ltd[1980] UKHL 2; [1980] AC 827, [1980] 1 All ER 556, HL, and the rejection of the doctrine of fundamental breach therein. As to fundamental breach see PARA350.
It has been suggested that repudiation of a contract of employment at common law automatically brings the contract to an end: Vine v National Dock Labour Board [1956] 1 QB 658, [1956] 1 All ER 1, CA, per Jenkins LJ (affd [1957] AC 488, [1956] 3 All ER 939, HL); Sanders v Ernest A Neale Ltd[1974] EW Misc 1; [1974] 3 All ER 327, [1974] ICR 565; Hare v Murphy Bros Ltd[ 1974] 3 All ER 940, [1974] ICR 603, CA. But see Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 2 All ER 216, [1971] 1 WLR 361, CA; Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227, [1978] 3 All ER 193; Gunton v Richmond-upon-Thames London Borough Council [1981] Ch 448, [1980] 3 All ER 577, CA; FC Shepherd & Co Ltd v Jerrom [1987] QB 301, [1986] ICR 802, CA; Rigby v Ferodo Ltd [1988] ICR 29, [1987] IRLR 516, HL; and see employment vol 41 (2021) paras 833–834.
^[12] This is subject to the terms of the contract: see PARA341. As to the right to elect see PARAS358–360; and as to election see PARA362.
^[13] 'An unaccepted repudiation is a thing writ in water': Howard v Pickford Tool Co Ltd [1951] 1 KB 417, CA, per Asquith LJ; Frost v Knight[1872] UKLawRpExch 22; (1872) LR 7 Exch 111, Ex Ch; Brown v Muller[1852] EngR 176; (1872) LR 7 Exch 319; Roper v Johnson[1873] UKLawRpCP 11; (1873) LR 8 CP 167; Mersey Steel and Iron Co Ltd v Naylor, Benzon & Co (1884) 9 App Cas 434, HL; Johnstone v Milling (1886) 16 QBD 460, CA, per Lord Esher MR, and at 470–471 per Cotton LJ, and at 472–473 per Bowen LJ; Braithwaite v Foreign Hardwood Co[1905] UKLawRpKQB 76; [1905] 2 KB 543–549, CA, per Collins MR; Anchor Line (Henderson Bros) Ltd v Mohad [1922] 1 AC 146, HL; White and Carter (Councils) Ltd v McGregor[1961] UKHL 5; [1962] AC 413, [1961] 3 All ER 1178, HL (overruling Langford & Co v Dutch 1952 SC 15); Harbutt's Plasticine Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447, [1970] 1 All ER 225, CA, per Lord Denning MR; Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 2 All ER 216, [1971] 1 WLR 361, CA; Bunge Corpn v Vegetable Vitamin Foods (Private) Ltd [1985] 1 Lloyd's Rep 613; Beitel v Sorokin [1973] 5 WWR 639, Alb SC; and see the cases cited in PARA360. See also Barclays Bank plc v UniCredit Bank AG [2014] EWCA Civ 302, [2014] 2 All ER (Comm) 115 (early termination of guarantee).
^[14] Heyman v Darwins Ltd [1942] AC 356, [1942] 1 All ER 337–347, HL; FJ Bloemen Pty Ltd v Council of the City of Gold Coast [1973] AC 115, [1972] 3 All ER 357, PC. As to the exercise of an express provision for termination for breach: see Fercometal SARL v Mediterranean Shipping Co SA, The Simona[1989] AC 788, [1988] 2 All ER 742, HL; Global of London (Tours and Travel) v Tait 1977 SLT 96; and PARA341. See also Transocean Drilling UK Ltd v Providence Resources plc[2016] EWCA Civ 372, [2016] 2 All ER (Comm) 606.
^[15] O'Neil v Armstrong, Mitchell & Co[1895] UKLawRpKQB 143; [1895] 2 QB 418, CA; Moschi v Lep Air Services Ltd [1973] AC 331, [1972] 2 All ER 393, HL; Maredelanto Cia Naviera SA v Bergbau-Handel GmbH, The Mihalis Angelos[1970] EWCA Civ 4; [1971] 1 QB 164, [1970] 3 All ER 125, CA.
^[16] Photo Production Ltd v Securicor Transport Ltd[1980] UKHL 2; [1980] AC 827, [1980] 1 All ER 556, HL.
^[17] Suisse Atlantique Société d'Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361, [1966] 2 All ER 61, HL.
^[18] Heyman v Darwins Ltd [1942] AC 356, [1942] 1 All ER 337, HL; FJ Bloemen Pty Ltd v Council of the City of Gold Coast [1973] AC 115, [1972] 3 All ER 357, PC; Connex South Eastern Ltd v MJ Building Services Group plc [2004] EWHC 1518 (TCC) at [25], (2004) 95 ConLR 43, [2004] BLR 333 at [25] (affd [2005] EWCA Civ 193, [2005] 2 All ER 870, [2005] 1 WLR 3323, without consideration of this issue).