Stern v. McArthur
165 CLR 48981 ALR 463
(Decision by: Gaudron J)
Between: Stern
And: McArthur
Judges:
Mason CJ
Brennan J
Deane J
Dawson J
Gaudron J
Subject References:
Purchaser
Judgment date: 11 October 1988
Canberra
Decision by:
Gaudron J
In Legione v. Hateley (1983) 152 CLR 406 this Court held that specific performance may be granted in favour of a purchaser who has breached an essential term of a contract for the sale of land. However, it was made clear in that case and in the subsequent case of Ciavarella v. Balmer (1983) 153 CLR 438 that the grant of such relief is exceptional. The question which arises on this appeal is whether the respondents have made out a case for the grant of the exceptional relief identified in Legione.
The respondents, Terrence John McArthur and Kathleen McArthur, now Kathleen Bates, entered into a contract to purchase from the appellants, Henry Maurice Stern and Shirley Irene Stern, what was then vacant land at Cranebrook, near Penrith in New South Wales.
The contract was a terms contract and the 1965 Edition of the Law Society of New South Wales' Copyright Contract For Sale of Land was adapted to that end. The purchase price was $5,250. A deposit of $250 was payable upon the signing of the contract (cl.1). The balance was payable by monthly instalments of not less than $50, the first instalment to be paid on 3 December 1969 and thereafter on the 3rd day of every month until the balance purchase price together with interest at the rate of 8.5 per centum per annum calculated on annual rests should be paid, with the right at any time to pay the whole of the balance purchase price with interest to the date of payment (cl.1 of the First Schedule to the contract). The purchasers (respondents) were also given the right to make additional payments towards the purchase price by the sum of $10 or multiples thereof during any year (cl.2 of the First Schedule to the contract). We were informed by counsel for the respondents that, had payments been made at the rate of $50 per month, final payment would have been made in 1983, 13 1/2 years after the making of the contract.
The contract provided that the purchasers (respondents) should obtain possession on completion (cl.12). Until completion the vendors (appellants) were entitled to rents and profits and were to bear all rates, taxes and outgoings (cl.9).
In 1972 the respondents erected a house on the land. They took up residence in the house in January 1973 and paid rates until 1977. No variation was made to the contract to cover this situation, although it seems that the appellants may have given permission to the respondents to take possession of the land. In any event they acquiesced in the action taken by the respondents.
In 1975 the relationship between the respondents came to an end. Mr McArthur moved out of the house, but Mrs Bates remained in possession. Mr McArthur continued to pay the instalments and the rates until March 1977. Thereafter no instalments were paid until April 1978. Non-payment brought cl.18 of the contract into operation, that clause providing in sub-cl.(a) that:
"If default by the Purchaser in payment of any instalment of the purchase price or interest hereunder shall continue for four weeks the balance of the purchase price then owing with accrued interest shall immediately without notice to the Purchaser become due and payable."
In April 1978 Mrs Bates became aware that the instalments were in arrears. She immediately made payment of three instalments by depositing $150 into the bank account of the appellants, that being the method previously adopted for payment. She also attended upon the appellants' solicitor (Mr McQueeney) seeking a payout figure and information as to the outstanding arrears.
Mrs Bates paid a further instalment on 5 May, and on 11 May the appellants' solicitor wrote demanding that "the full amount due and owing be paid immediately." No payout figure was provided. Mrs Bates then tendered payment of all arrears to Mr McQueeney. This was refused, Mr McQueeney stating that the appellants required payment of the balance of the purchase price. However, no payout figure was provided. Mrs Bates again requested a payout figure. Further payments of $50 were made.
In July 1978 Mr McQueeney again wrote informing Mrs Bates that she had "seven full days in which to arrange alternative finance" otherwise the appellants would take action "for the recovery of (their) land and all moneys owing". Again no payout figure was provided. Mrs Bates then consulted a solicitor, Mr Wilson, who on 5 July wrote to Mr McQueeney seeking details of the payout figure. In August Mrs Bates ascertained from Mr Stern, and on 29 August Mr McQueeney confirmed, that as at 1 November 1978 the payout figure would be $3,940.17 and that credit would be given for any payments made after 30 June 1978.
At this stage Mrs Bates arranged alternative finance but Mr McArthur required the property to be put on the market for sale. It seems that it was offered for sale, but on 17 January 1979, nothing having been finalised, the appellants caused a notice to complete to issue requiring completion within twenty one days. On 26 February 1979 a notice of termination issued. That notice relied on cl.15 of the contract which provided as follows:
"If the Purchaser defaults in the observance or performance of any obligation imposed on him under or by virtue of this Agreement, the deposit paid by him hereunder, except so much of it as exceeds 10% of the purchase price, shall be forfeited to the Vendor, who shall be entitled to terminate this Agreement and thereafter either to sue the Purchaser for breach of contract or to resell the property as owner and the deficiency (if any) arising on such resale and all expenses of and incidental to such resale or attempted resale and the Purchaser's default shall be recoverable by the Vendor from the Purchaser as liquidated damages provided that proceedings for the recovery thereof be commenced within 12 months of the termination of this Agreement. The Vendor may retain any money paid by the Purchaser on account of the purchase other than the deposit money forfeited under this clause as security for any deficiency arising on a resale or for any damages or compensation (including any allowance by way of occupation fee or for rents or profits from a Purchaser who has been in possession of the property or in receipt of the rents or profits thereof) awarded to him for the Purchaser's default provided that proceedings for the recovery of such damages or compensation be commenced within 12 months of the termination of this Agreement."
When the contract was terminated the value of the land was many times greater than it had been at the time the parties entered into the contract for sale.
Correspondence ensued between the solicitors relating, it seems, to prospective purchasers known to the respondents. On 28 March 1979, Mr McQueeney wrote on behalf of the appellants to Mr Wilson, the solicitor for the respondents, stating that "if your clients are prepared to introduce my clients to their Purchasers, my clients are prepared to allow your clients to receive the benefit of any improvements that they may have erected upon the property." Mr McQueeney asserted that the appellants were to have the benefit of all other increases in the value of the land. This position still obtains in that the appellants have at all relevant times submitted to conditions or given undertakings to compensate the respondents for the value represented by the dwelling erected on the land.
Notwithstanding that the appellants had elected to terminate the contract Mrs Bates continued in possession. She continued to pay the monthly instalments. In May 1979 Mr McArthur paid $2,500 into the bank account of the appellants, that being sufficient to pay whatever amount might then have been the balance purchase price. The fact of this payment did not come to the knowledge of the appellants for some considerable time and at that stage Mr Stern drew a cheque for this amount and forwarded it to his solicitor, Mr McQueeney, for refund to the respondents. Mr McQueeney, for reasons unknown, did not effect that refund. Later, in February 1981 and May 1981, cheques for $1,100 and $150 were forwarded to the respondents' solicitor, Mr Wilson, presumably by way of refund of instalments paid after notice of termination. These cheques were not negotiated.
In September 1979 the appellants commenced an action against the respondents in the Supreme Court of New South Wales claiming possession of the land and damages. By amended statement of claim they also claimed, inter alia, declarations that the contract for sale had been validly terminated and that the deposit of $250 had been forfeited to the vendors. By an amended defence and cross claim the respondents sought a declaration that the notice of termination was ineffective and a decree of specific performance. Alternatively, they sought relief against "the forfeiture (if any) of their rights and interests under the said contract upon such terms as the Court may think fit." In the further alternative they sought an account of profits and damages for breach of contract.
At first instance Waddell J. held that the appellants were entitled to the relief claimed by them and that the respondents were entitled to "relief against forfeiture of the value added to the land by the house as at the date on which it is resold and such of the payments made (other than the deposit) as are not required to meet any of the items mentioned in cl.15 of the contract."
Although his Honour expressed the remedy in relation to the instalments paid in terms of relief against forfeiture it would seem that what was intended was a declaration of the respondents' entitlement pursuant to cl.15 of the contract. The basis of the grant of relief against forfeiture of the value added to the land was not made clear. In this Court it was suggested by counsel for the appellants that the respondents were entitled to an equitable lien as part of a purchaser's lien quite independently of any concession made by the appellants. It is not readily apparent that this entitlement (assuming it to exist) should be anything other than an immediate entitlement rather than one to be ascertained in the event of resale: see Rawson v. Hobbs (1961) 107 CLR 466 , at p 485.
The respondents successfully appealed to the Court of Appeal. It was held by majority (Hope and Priestley JJ.A., Mahoney J.A. dissenting) that the respondents should be granted relief against forfeiture and specific performance.
In the Court of Appeal, Priestley J.A., with whom Hope J.A. agreed, upheld the respondents' appeal on two distinct bases. In his Honour's view, by reason of the respondents going into possession, building their home and paying rates, the legal rights of the appellants had become, in essence, security for the payment of money, and as such it was equitable to grant relief as claimed by the respondents. However, his Honour was also of the view that insistence by the appellants on their strict legal rights amounted to unconscionable conduct entitling the respondents to the grant of relief.
In this Court it was argued on behalf of the appellants that the exceptional relief identified in Legione is only available if the actions of a vendor in rescinding a contract amount to unconscionable conduct, and that in the circumstances of the present case the conduct of the appellants could not be so characterized. Although other matters were in issue at earlier stages of the proceedings, the only issues argued in this Court were those relating to the respondents' entitlement to relief against forfeiture of their interest arising under the contract and the grant of specific performance.
It is convenient to remark at once that there is some uncertainty as to what is involved in a case such as the present in the remedy of relief against forfeiture. In the Court of Appeal Mahoney J.A. regarded the issue raised as whether "the termination of the contract should be set aside as on relief against forfeiture." On the other hand Priestley J.A., conformably with expressions to the same effect in Legione, saw the issue as "(relief) against forfeiture of a purchaser's interest in land under a contract of sale where that interest is lost consequent upon a discharge of the contract".
To understand the significance of relief against forfeiture in a case such as the present it is necessary to embark on an historical excursus beginning with the decisions in In re Dagenham (Thames) Dock Co. Ex parte Hulse (1873) LR 8 Ch App 1022 and Kilmer v. British Columbia Orchard Lands, Limited [1913] AC 319 . In In re Dagenham there was an agreement for sale of land for the sum of 4,000 pounds, of which 2,000 pounds was payable on execution of contract and the balance, together with interest, at a specified date (in which respect time was made essential) when the purchase was to be completed. The purchaser was to have possession from the date of the contract. By a subsequent agreement a later date was fixed for the payment of the balance purchase price and interest. It was provided in the subsequent agreement that time was of the essence, and that if all moneys were not paid on the date fixed, the vendors were entitled to retake possession of the lands and all works thereon and to retain the land as in their former estate, without obligation to repay any of the moneys paid by the purchaser. The purchaser defaulted and the vendors brought action in ejectment. It was agreed that they should be at liberty to sign judgment, but that they should undertake not to issue execution until further order and to abide by any order made as to the property affected. On an application to issue execution it was held that the contract provisions constituted a penalty from which the purchaser was entitled to relief on payment of the balance of the purchase price with interest.
In Kilmer a purchaser in possession defaulted in payment of an instalment under a contract for sale in which time was of the essence. The contract provided that in the event of default the contract should be null and void, the vendor should be at liberty to resell the land and all payments made should be forfeited. An extension of time was granted for the payment of one instalment, but it was not paid within the extended time. The vendor brought action seeking a declaration that he was entitled to enforce his rights under the contract. The purchaser sought specific performance. The Privy Council held that the contract provisions constituted a penalty and granted specific performance.
In Steedman v. Drinkle [1916] 1 AC 275 the Privy Council explained the decision in Kilmer on the basis that the stipulation as to time had ceased to be applicable. In McDonald v. Dennys Lascelles Ltd. (1933) 48 CLR 457 , Dixon J. (at p 478) noted the explanation given in Steedman but expressed the view that what was involved in In re Dagenham, and perhaps also in Kilmer, was relief "not against the forfeiture of the instalments, but against the forfeiture of the estate under a contract which involved the retention of the purchase money". However, his Honour did not proceed to identify the basis upon which that relief was granted. In In re Dagenham and in Kilmer the contractual provisions providing for termination and forfeiture of payments upon default were seen, in their entirety, as constituting a penalty in the circumstances under consideration. In In re Dagenham because the contractual provisions were viewed in their entirety as a penalty they constituted no bar to the grant of the relief appropriate in that case, i.e. relief against the provisions operative upon default, conditional upon payment of the balance purchase money. In Kilmer the contractual provisions were similarly viewed, and being viewed in that light constituted no impediment to the grant of specific performance. Thus in Kilmer the contractual provisions involving the termination of the contract and forfeiture of the moneys paid were treated in the same manner as non-essential provisions relating to time, which, in an action for specific performance were simply disregarded, at least if capable of being disregarded without injustice to the parties. See Stickney v. Keeble [1915] AC 386 , per Lord Parker of Waddington at pp 415-416.
In Steedman there was an instalment contract for sale providing that in default the vendor should be at liberty to cancel the agreement and to retain, as liquidated damages, the payments already made. Time was stated to be of the essence. It was held that the provision for forfeiture of payments constituted a penalty against which relief should be granted on proper terms. The purchaser's claim for specific performance was refused, it being stated (at p 279):
"Courts of Equity ... no doubt exercise an extensive jurisdiction which enables them to decree specific performance in cases where justice requires it, even though literal terms of stipulations as to time have not been observed. But they never exercise this jurisdiction where the parties have expressly intimated in their agreement that it is not to apply by providing that time is to be of the essence of their bargain."
See also Brickles v. Snell [1916] 2 AC 599 , at p 605.
The decisions of the Privy Council in Steedman and Brickles came to be accepted as authority for the proposition that where a condition making time of the essence was not waived it was not possible to grant specific performance to a defaulting purchaser Legione, per Gibbs C.J. and Murphy J. at pp 427-428 and the cases there cited) or that specific performance could not be granted to a purchaser once the contract was rescinded in consequence of the breach of an essential term Legione, per Mason and Deane JJ. at pp 441-443 and the cases there cited).
In Legione it was decided that a less restrictive view should be taken of the power to grant specific performance to a purchaser even though the contract had been rescinded following the breach by the purchasers of an essential term. In that case Gibbs C.J. and Murphy J. (at p 429) considered that relief could be granted against forfeiture of interest in property (providing forfeiture is unjust in the circumstances) as a preliminary to an order for specific performance in favour of a purchaser notwithstanding that the purchaser was in breach of a time stipulation made essential by the contract. On the other hand, Mason and Deane JJ. (at p 449) stated that specific performance should be available "so that it becomes an effective instrument in situations in which it is necessary to relieve against forfeiture of the purchaser's interest under a contract for sale." Brennan J. differed from other members of the Court both as to the result and the reasons producing that result. In this context it is permissible to express a somewhat different view as to the relevance of relief against forfeiture to the grant of specific performance to a purchaser even though the contract has been rescinded following breach by the purchaser of an essential time stipulation. Before expressing that view it is convenient to note that there are some difficulties inherent in the different views of the majority in Legione as to the significance of relief against forfeiture.
There is reason to accept that if, at law and in equity, a contract has been rescinded it may be necessary to reinstate the contract as a preliminary to the grant of specific performance. On this basis, as Mahoney J.A. observed, "termination of the contract should be set aside as on relief against forfeiture." However, there is a degree of circularity in the notion that it is necessary to grant relief against forfeiture of an interest in land as a preliminary to the grant of specific performance. The protect the interest under the contract by obtaining specific performance: Legione, at pp 446-447 and 456-457; Bahr v. Nicolay (1988) 62 ALJR 268 ; 78 ALR 1 , at pp 269 and 285; pp 4 and 29-30 of ALR. The issue raised by a purchaser who seeks specific performance of a contract which has been rescinded is not whether relief should be granted against the forfeiture of the interest arising under that contract, but whether specific performance remains an available remedy notwithstanding rescission.
The view that specific performance may be necessary to effectuate relief against forfeiture of an interest in land seems to me to obscure the nature of the interest forfeited. Compliance with a decree of specific performance will vest the legal interest contracted to be sold. Is this the interest that has been forfeited? I think not. What is forfeited under a contract for the sale of land is, as above stated, an equitable interest commensurate with the ability to obtain specific performance.
It seems to me that the significance of relief against forfeiture to the grant of specific performance to a purchaser even though the contract has been rescinded following breach by the purchaser of an essential term is the identification of some matter or circumstance bearing upon loss or forfeiture, which matter or circumstance Equity will disregard. Once the matter or circumstance is disregarded a question then arises as to the entitlement Equity regards as subsisting and the remedy necessary to give effect to that entitlement. The entitlement may be to have that which was forfeited restored - hence the remedy as was allowed in Steedman in relation to the instalments paid. On the other hand the entitlement may be to all the rights contracted for - hence the remedy of specific performance as was granted in Kilmer.
The question then arises whether the only matter or circumstance bearing upon forfeiture of an interest under a contract of sale which will justify the grant of specific performance to a purchaser of a contract which has been rescinded is unconscionable conduct on the part of the vendor. In Legione, Mason and Deane JJ. were of the view that unconscionable conduct was crucial to the grant of relief, stating (at p 449) that the existence of exceptional circumstances "hinges on the existence of unconscionable conduct." Their Honours identified such conduct as including conduct which has "effectively caused or contributed to the purchaser's breach of contract" and conduct engaged in with the object "not to safeguard the vendor from adverse consequences ... but merely to take unconscientious advantage of the benefits which will fortuitously accrue to him on forfeiture of the purchaser's interest under the contract" (at p 449).
On the other hand Gibbs C.J. and Murphy J. were of the view that relief might be granted because forfeiture would result in the exaction of "a harsh and excessive penalty for a comparatively trivial breach" (at p 429).
The difference between the two approaches is manifest. The approach adopted by Mason and Deane JJ. concentrates on the quality of the vendor's action. The approach adopted by Gibbs C.J. and Murphy J. assimilates the consequences of that conduct to a penalty.
If it is the conduct of the vendor that is in issue then, in my view, it is the quality of that conduct which must be evaluated, and for it and its consequences to be disregarded, it must amount to unconscionable conduct.
In view of the different approaches taken in Legione that case cannot be taken to have decided that specific performance can be granted to a purchaser in breach of an essential term only if the actions of the vendor in rescinding the contract amount to unconscionable conduct. Nor is that conclusion dictated by the subsequent decision in Ciavarella which reaffirmed statements in Legione that only in exceptional circumstances will relief be granted to a purchaser after rescission for breach of an essential term.
In Legione it was pointed out by Mason and Deane JJ. (at p 445) that forfeiture of a purchaser's interest under a contract of sale is to be distinguished from a contractual forfeiture designed to ensure performance of a principal obligation. Their Honours also pointed out (at pp 445-446) that a contractual provision providing for rescission and forfeiture of the interest under the contract following breach of an essential term is neither a penalty nor in the nature of a penalty. So much must be accepted.
In Shiloh Spinners v. Harding [1973] AC 691 Lord Wilberforce reviewed the jurisdiction to grant relief against forfeiture and stated (at pp 723-724):
"But it is consistent with these principles that we should reaffirm the right of courts of equity in appropriate and limited cases to relieve against forfeiture for breach of convenant or condition where the primary object of the bargain is to secure a stated result which can effectively be attained when the matter comes before the court, and where the forfeiture provision is added by way of security for the production of that result. The word 'appropriate' involves consideration of the conduct of the applicant for relief, in particular whether his default was wilful, of the gravity of the breaches, and of the disparity between the value of the property of which forfeiture is claimed as compared with the damage caused by the breach."
His Lordship obviously considered that the conduct of the applicant for relief was relevant to his entitlement to the relief sought but did not suggest that the availability of relief was, in the postulated circumstances, conditional upon unconscionable conduct on the part of the person against whom relief is sought.
It may be that a provision enabling rescission is properly to be viewed as having the object of securing a stated result, for example, the payment of money. Or again it may be that the provision operates to effect a consequence disproportionate to the damage caused by the breach giving rise to the right of rescission and is thus to be regarded as in substance a penalty or in the nature of a penalty. In such cases it is the provision itself, and not the conduct of the vendor in exercising the contractual right, which should be disregarded for the purpose of determining the rights which Equity will treat as subsisting. This was the course taken in In re Dagenham and in Kilmer, the question in those cases being the characterization of the contractual stipulation rather than the characterization of the vendor's conduct.
Where relief is sought on the basis that the contractual provision is to be disregarded because it is security for a stated result or is in substance a penalty or in the nature of a penalty it may be that the question whether it bears that character, just as the question whether a contractual stipulation is a penalty, should be determined by reference to the circumstances obtaining at the time of the making of the contract. See Dunlop Pneumatic Tyre Company Ltd. v. New Garage and Motor Company Ltd [1915] AC 79 , at pp 86-87; O'Dea v. Allstates Leasing System (WA) Pty. Ltd. (1983) 152 CLR 359 , at pp 368 and 373.
On behalf of the respondents it was contended that a contractual stipulation involving termination of an instalment contract for sale of land is, in essence, security for the payment of the purchase price, and as such (subject to the purchaser not having engaged in disentitling conduct) should not be a bar to the grant of specific performance to a purchaser who has committed a breach giving rise to rescission. For present purposes it is sufficient to state that in my view such a proposition may be true of some instalment contracts of sale, but if that issue is to be determined by reference to circumstances obtaining at the time of the making of the contract it might well not be true of a contract, such as the present, providing that outgoings remain the responsibility of the vendor and requiring the payment of a relatively small deposit and instalments. However, these are matters which need not be pursued, for in my view, the actions of the appellants in bringing cl.15 into operation and insisting on their strict contractual rights as conferred by that clause amounted to unconscionable conduct.
By the time cl.15 was brought into operation the contract had been on foot for ten years. A house had been erected on the land and had become the home of Mrs Bates. The land had appreciated in value. The balance purchase price was a relatively insignificant amount, and (as a matter of simple mathematics) the total of instalments already paid, albeit that they had been allocated first to the payment of interest and thereafter to payment of the purchase price, greatly exceeded the amount then outstanding. The vendors had a choice as to whether they would seek specific performance which would secure all for which they had contracted or whether they would take steps to terminate the contract and to enforce the consequential rights provided in cl.15 of the contract. They chose the latter course, electing to resell the property had greatly appreciated in value, to forfeit the deposit paid and to retain all payments of instalments as security for the "deficiency" which might arise on resale. Clearly there was no prospect of any deficiency. The only prospect was one of considerable profit accruing by reason of the increased value of the land. Insistence on those rights, involving the loss to Mrs Bates of her home, the loss to the respondents of their interest under the contract, the forfeiture of the deposit and the indefinite retention of the instalments already paid, so long as an action for damages was commenced within 12 months of termination, when a decree of specific performance would secure all that the appellants had contracted for was, in my view, unconscionable.
The unconscionability of the appellants' action in asserting and insisting upon the legal rights conferred by cl.15 of the contract is not, in my view, alleviated by the concession allowing to the respondents the benefit of the increased value referable to the house erected on the land. First, it may be remarked, that unconscionability is a matter to be determined by reference to the circumstances obtaining at the time of the actions in question. No concession was made until some weeks after notice of termination had been given, and then it was expressed to be conditional upon the respondents' introducing their purchasers to the appellants. But, more importantly, the concession very much leaves the time of receipt of the benefit of the increased value referable to the improvements on the land within the power and control of the appellants. The benefit will accrue only if and when the property is sold. It is as unconscionable for the respondents to be shut out from that benefit pending sale as it is for them to be shut out from money which they have paid towards the purchase price pending ascertainment of the deficiency arising on resale when clearly no such deficiency will arise.
To identify a matter or circumstance involving forfeiture of an interest under a contract of sale as a matter or circumstance which may be disregarded for the purpose of granting specific performance is not to assert that specific performance will be granted by reason of that matter or circumstance having been so identified. There remains the further question whether the conduct of the purchaser has been such as to effect a disentitlement from the grant of specific performance. In general terms that conduct will fall for assessment by reference to the breach giving rise to the right to rescind, including, (as stated in Legione, at p 449) whether the breach was wilful and serious or inadvertent and trivial.
In the present case the breach giving rise to rescission was the failure to pay the balance purchase price at the time made essential by the notice to complete. That was, in essence, a secondary obligation brought into existence by the appellants in reliance upon the automatic operation of cl.18 of the contract making the balance purchase price payable in the event of default for four weeks in the payment of an instalment. It was an obligation brought into existence after the respondents had tendered payment of all arrears of instalments. Although this tender was refused the respondents thereafter paid and the appellants thereafter accepted (at least until the issue of the notice to complete) payment of instalments as provided in cl.1 of the First Schedule to the contract. Apart from the period of 13 months dating from March 1977 when Mr McArthur failed to make payment of instalments, there was no blatant disregard of the primary contractual obligation. Rather, the respondents were asserting their willingness to discharge the primary obligation whilst the appellants were asserting their right to have the balance purchase price paid in full, notwithstanding that in the early period of that assertion the appellants, despite repeated requests, did not provide a payout figure. In these circumstances I think the breaches by the respondents were not such as to disentitle them from relief otherwise available by reason of the unconscionable conduct of the appellants in terminating and insisting on their strict legal rights as provided in cl.15 of the contract.
I would dismiss the appeal.