Dear Colleagues;

Because this is not my area, I don’t offer any detailed comments, but I thought it worth noting for those interested in contract law, that in the last week the High Court of Australia and the UK Supreme Court have handed down decisions which seem to involve the interaction between the area of damages for breach of contract and the law of debt.

In Shao v Crown Global Capital Pty Ltd (in prov liq) [2025] HCA 43 (5 November 2025) https://www.austlii.edu.au/cgibin/viewdoc/au/cases/cth/HCA/2025/43.html the issue is, where a debt is due but the manner of repayment has been specified as payment into a joint bank account, but the debtor pays to only one of the creditors, does the other creditor have an action for breach of contract? The court holds that yes, even if the debt has been impliedly discharged, there can still be an action for breach of contract in not paying into a joint account (here one of the debtors had made off with the money and so the other one was suing for the loss they had suffered due to this.)

In King Crude Carriers SA & Ors v Ridgebury November LLC and others [2025] UKSC 39 (12 November 2025 https://www.bailii.org/uk/cases/UKSC/2025/39.html    the question was, where a contract requires a pre-condition for a payment to be made (creation of a bank account) and the debtor fails to create the account, is there an automatic right to recover the debt owed due to a fictional deeming that the condition has been satisfied? (As apparently required by the decision in Mackay v Dick (1881) 6 App Cas 251.) Or is the remedy of the creditor simply to seek damages for breach of contract? The UKSC holds that Mackay is not part of English law and that the remedy is only in damages.

I leave it to others to comment on either or both of these decisions! 😊

regards

Neil

NEIL FOSTER

Associate Professor, School of Law and Justice

College of Human and Social Futures,

 The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

I acknowledge the Traditional Custodians of the land in which the University resides and pay my respect to Elders past and present.
I extend this acknowledgement to the Worimi and Awabakal people of the land in which the Newcastle City campus resides and which I work.

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