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  4. Gripske v Maritimo Sales Australia Pty Ltd - [2025] QDC 133

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Gripske v Maritimo Sales Australia Pty Ltd[2025] QDC 133

Gripske v Maritimo Sales Australia Pty Ltd[2025] QDC 133

DISTRICT COURT OF QUEENSLAND

CITATION:

Gripske v Maritimo Sales Australia Pty Ltd [2025] QDC 133

PARTIES:

Paul Gripske

(Applicant)

v

Maritimo Sales Australia Pty Ltd

ACN 124 564 192

(Respondent)

FILE NO:

3051 of 2024.

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

26 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2025

JUDGE:

Byrne KC DCJ

ORDERS:

  1. The applications are refused.
  2. The applicant is to pay the respondent’s costs of and incidental to the applications on the standard basis.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND NON-PERFORMANCE – REPUDIATION – where the applicant and respondent were parties to a contract for the sale and purchase of a motor yacht – where the contract allowed for the purchase price to be paid in instalments and was thus a lay-by agreement under the Australian Consumer Law (ACL) – where the respondent, as purchaser, exercised his statutory right under the ACL to terminate the contract without any breach by the vendor being alleged – where the ACL allowed for the contract to provide for the retention of a termination charge if the contract was terminated – where the contract allowed for the retention of 10% of the contract price where the purchaser breaches or otherwise repudiates the agreement – whether the phrase ‘or otherwise repudiates’ is to be construed as to include lawful termination under the ACL for the purposes of retaining a termination charge.

LEGISLATION:

Competition and Consumer Act 2010 ­sch 2, ss 97, 99.

CASES:

Heyman v Darwins Ltd [1942] AC 356.

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115.

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104.

Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64.

QNI Resources Pty Ltd v North Queensland Pipeline No 1 Pty Ltd (2022) 11 QR 648.

COUNSEL:

Mr. T. Jackson for the applicant.

Mr. L. Kelly KC with Mr S. Eggins for the respondent.

SOLICITORS:

Bennett & Philp Lawyers for the applicant.

HopgoodGanim Lawyers for the respondent.

Introduction

  1. [1]
    On 8 June, 2022 the parties entered into a written contract for the sale and purchase of a motor yacht (“the contract”); the applicant as purchaser and the respondent as vendor. The approximate date of delivery noted in the contract was August 2024. After subsequent variations to the contract, the contract price was $4,141,930.00. The contract price was payable in four instalments, all of which were to be paid on or before delivery of the vessel, and before title in it would pass. It is common ground that the contract was a “Lay-by Agreement”, as defined in the Australian Consumer Law (“ACL”), thereby attracting the operation of Part 3-2 Division 3 of that Act.[1]
  2. [2]
    On 20 June 2024, the applicant, through his solicitors, wrote to the respondent terminating the contract (“the termination”). The respondent accepts that the termination was lawful and effective; the power to terminate was afforded by s. 97(1) of the ACL. By that date, the applicant had made three instalment payments totalling $1,522,500.00, and neither party was in breach of the contract terms. The applicant requested the refund of all monies paid under the contract.
  3. [3]
    On 5 July 2024 the respondent refunded $1,108,307.00 and retained 10% of the contract price, namely $414,193.00 (“the retained amount”), as a “termination charge” it contends is authorised by clause 2.3 of Part D of the contract[2] when read in light of ss. 97 and 99 of the ACL. It also asserted that the amount retained was less than its reasonable costs under the agreement. The applicant does not suggest the amount retained is in excess of the reasonable costs incurred.
  4. [4]
    The applicant seeks an order for payment of the retained amount and other associated declarations. The issue before me is whether the retention of any or all of the retained amount was in fact authorised, given the terms of the contract and, if not, whether the respondent is required to return those moneys pursuant to s. 99 of the ACL or alternatively to pay damages for a contravention of s. 99 of the ACL. For the reasons that follow, the respondent’s retention of the retained amount is authorised in the particular circumstances and, hence, the applications must be refused.

The legislative framework

  1. [5]
    Sections 97 and 99 of the ACL are of relevance to the dispute:

97  Termination of lay-by agreements by consumers

  1. A consumer who is party to a lay-by agreement may terminate the agreement at any time before the goods to which the agreement relates are delivered to the consumer under the agreement.
  1. A supplier of goods who is a party to a lay-by agreement must ensure that the agreement does not require the consumer to pay a charge (a termination charge) for the termination of the agreement unless:
  1. the agreement is terminated by the consumer; and
  1. the supplier has not breached the agreement.

Note:  A pecuniary penalty may be imposed for a contravention of this subsection.

  1. A supplier of goods who is a party to a lay-by agreement must ensure that, if the agreement provides that a termination charge is payable, the amount of the charge is not more than the supplier’s reasonable costs in relation to the agreement.

Note:  A pecuniary penalty may be imposed for a contravention of this subsection.

99  Effect of termination

  1. If a lay-by agreement is terminated by a party to the agreement, the supplier must refund to the consumer all the amounts paid by the consumer under the agreement other than any termination charge that is payable under the agreement.

Note:  A pecuniary penalty may be imposed for a contravention of this subsection.

  1. The supplier is entitled to recover any unpaid termination charge from the consumer as a debt if the amounts paid by the consumer under the lay-by agreement are not enough to cover the charge.
  1. If a lay-by agreement is terminated by a party to the agreement, the supplier is not entitled to damages, or to enforce any other remedy, in relation to that termination except as provided for by this section.

The contract

  1. [6]
    The critical clause in the contract in the circumstances is cl. 2.3 of Part D. It provides:

“2.3  If the Purchaser breaches any term of this Agreement or otherwise repudiates this Agreement, then without prejudice to any rights and remedies available to it at law or equity, the Vendor may, in its sole election, do any one or more of the following:

  1. Terminate this Agreement;
  1. Resell the Cruiser with no liability to account to the Purchaser in respect of same;
  1. Forfeit and retain any monies paid by the Purchaser on account of the price of the Cruiser, to a maximum of ten percent (10%) of the value of the Cruiser;
  1. Recover from the Purchaser by way of liquidated damages an amount representing any deficiency on the resale of the Cruiser, to a maximum of ten percent (10%) of the value of the Cruiser;
  1. recover from the Purchaser by way of liquidated damages any loss of profit and reasonable expenses and costs incurred as a result of such breach by the Purchaser, to a maximum of ten percent (10%) of the value of the Cruiser; and/or
  1. Retain the Trade-In Vessel (or the proceeds of sale of same) with no liability to account to the Purchaser in respect of same.” (underlining added)
  1. [7]
    Some other clauses will be referred to in these reasons without the full recitation of their terms.

Submissions

  1. [8]
    In the context of the parties’ joint position that the contract was a “lay-by agreement”, as defined, that the applicant’s statutory right to terminate the contract was lawfully and effectively exercised and that neither party was in breach of the contract at the time the applicant terminated it, both parties submitted that substantial focus fell on cl. 2.3 of Part D of the contract, albeit with different submissions as to its effect.
  2. [9]
    The applicant’s submissions can be distilled into the following propositions:
  1. a)
    Sections 97 and 99 of the ACL do not create a statutory right for a vendor to charge a termination charge that is not otherwise provided for in the contract. There is no such provision in the contract.
  1. b)
    The applicant’s lawful termination of the contract was just that, a termination. The concepts of termination and repudiation are distinct.
  1. c)
    When technical terms are used, it can be assumed they are being used in the technically correct sense. The contract uses the terms “breach” and “termination” elsewhere, supporting the proposition that “repudiates” in cl. 2.3 of Part D is being used in its technically correct sense.
  1. d)
    Therefore, as the applicant neither breached nor otherwise repudiated the contract, the six rights afforded to the vendor by cl. 2.3 of Part D do not arise.
  1. e)
    The respondent’s alternative argument, raised for the first time in submissions, that a necessary term can be implied into the contract fails on a consideration of the correct approach to the implication of a term into a contract.
  1. f)
    On that basis, the applicant is entitled to a full refund of all money paid by instalments under the contract.
  1. [10]
    The respondent’s submissions are in essence:
  1. a)
    According to well established principles, the contract should be construed in a commercial sense, including the commercial purpose or objects to be secured by the contract. It is not commercially sensible that it would be construed in a manner that would leave the vendor open to the whims of the purchaser in validly terminating at any time before the final payment and delivery of the vessel without any ability to recover any of the lost costs. Further, the proper construction of the contract requires that, where possible, all terms be read in a manner that is harmonious with the overall objects of the contract.
  1. b)
    The contract was, on its proper construction, designed to cover this very situation.
  1. c)
    The applicant has, by exercising the statutory right of termination, evinced an intention to no longer be bound by it. As such, he has otherwise repudiated the contract.
  1. d)
    There is a long history of the terms such as termination and repudiation being used interchangeably, even if inappropriately, in both a legal context and in everyday usage. While there is no authority cited which supports the proposition that an act can both terminate a contract and repudiate it, that is the outcome here on the commercial construction of the contract.
  1. e)
    Although not strongly pressed in oral submissions, the respondent submits that, if it fails in its primary response, the necessary term can be implied into the contract on accepted principles.
  1. [11]
    Neither party has located any authority directly on point, and in any event none that are particularly useful in terms of the operation of ss. 97 and 99 of the ACL in these circumstances. In particular, neither party could locate an authority bearing on the issue of whether the valid exercise of a statutory right to terminate a contract can, or cannot, also amount to a repudiation of it.

Can a termination charge be retained in this case?

  1. [12]
    Section 97(1) of the ACL authorised the termination of the contract by the applicant in this case.
  2. [13]
    Section 97(2) regulates the ability of the respondent to require the applicant to pay a termination charge. Its focus is on the contents of the contract, and in particular on the clauses that allow for the payment of a termination charge. They cannot require the payment of a termination charge other than where the contract is terminated by, in this case, the applicant and where the respondent is not in breach of the contract. The provision does not, in my view, require that those conditions be expressly stated in the contract. It is concerned with ensuring that the effect of the contract does not run contrary to those requirements.
  3. [14]
    Section 99 regulates the position where, as here, the contract has been terminated by the applicant. It requires the respondent to refund all monies paid under the contract, “other than any termination charge that is payable under the contract”. The definition of “termination charge” in the ACL directs attention to the use of that term in s. 97(2).
  4. [15]
    Clearly then, the statutory provisions do not provide the power to retain a termination charge by the respondent. They regulate the issue and direct attention to the terms of the contract to determine if a termination charge can be retained or sought. In the circumstances of this matter, that attention is focussed on cl. 2.3 of Part D. It is also this clause that provides for the retention of monies paid, or damages, in the amount of 10% of the contract price; the Act does not provide for the calculation of a termination charge independently of the contract.
  5. [16]
    The proper approach to the construction of commercial contracts is well settled,[3] nonetheless the summary of principles in QNI Resources Pty Ltd v North Queensland Pipeline No 1 Pty Ltd[4] is helpful. Importantly, they include the orthodox principles of contract construction that the terms of the contract must be understood in the context of the agreement, including any applicable legislative scheme, and an attempt must be made to give effect to every word in the contract and to construe them in a harmonious manner. There is no need to consider events, circumstances or things external to the contract to undertake the construction exercise here.
  6. [17]
    The contract itself generally recognises the potential operation of legislation to affect the rights of the parties to it; cl. 5.13 of Part D provides that the rights provided under the contract are cumulative and do not exclude any rights provided by law. The parties must be taken to have understood that the relevant parts of the ACL would apply.
  7. [18]
    The critical clause of the contract is cl. 2.3 of Part D. The parties have litigated on the basis that the applicant did not breach the terms of the contract, and so the focus is on the meaning of the phrase “otherwise repudiates”. In considering this, the word “otherwise” must be given effect. In my view, it must mean that the referred to act of repudiation is something other than an act that amounts to a breach of the contract.
  8. [19]
    The term “repudiation” can attach to many different acts, or defaults, depending on the terms of the agreement. It has long been recognised as being ambiguous in its meaning,[5] or used in many different senses.[6] There have been instances of the term being used to refer to the act of termination by election after repudiation has occurred.
  9. [20]
    I accept the force of the observation stated in Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council[7] that:

“There has long been a principle of construction concerning words or phrases that have a specialised or technical meaning in the law whereby: ‘[w]hen technical words or phrases are made use of, the strong presumption is, that the party intended to use them according to their correct technical meaning …’ … The presumption is rebuttable.”

  1. [21]
    In that case, the critical phrase had a clear and well-understood technical meaning in the field to which the relevant clause related.[8] The same cannot be said in the present matter. The applicant has failed to persuade me that the principle should be strictly applied where the term “repudiates” has a long history of being used in different senses.
  2. [22]
    One common and, for present purposes, applicable definition of repudiation is that one party to the agreement repudiates the agreement when, by some form of conduct, that party evinces an unwillingness or an inability to render substantial performance of its obligations under the contract.[9] At common law, the repudiation enlivens the rights of the other party or parties, but is of no effect unless accepted.
  3. [23]
    While recognising that resolution of the issue is not assisted by precedent authority, I am comfortably satisfied that the applicant’s election to terminate the contract also amounts to a repudiation, in the context of the terms of the contract at hand. By exercising the statutory right of termination, the applicant has evinced a clear unwillingness to complete the contract. In common law terms, that might be referred to as an anticipatory breach, given the time for payment of the last instalment had not arrived, but the power given by the statute means that it is not a breach, whether anticipatory or otherwise. Regardless, it was a repudiation of the contract.
  4. [24]
    The repudiatory act is not to be denied that character simply because there is no election able to be made by the respondent. The statute intervenes to categorise the repudiation as also amounting to a termination, thereby denying the respondent the ability to make an election. That is an unsurprising result given the consumer protection nature of the legislation, and so one of the principal distinctions between the consequences of a termination and a repudiation (as properly understood) dissolves by force of the statutory intervention.
  5. [25]
    It is not to the point that some of the remedies at cl. 2.3 of Part D are inapplicable in this scenario. It is to be expected that the contractual remedies provided for a wide range of possibilities. Where inapplicable, the sub-clause simply becomes an unexercised contractual right. The list of contractually provided remedies in the event of a breach or other repudiation does not assist with determining if the exercise of the statutory right of termination also amounts to an act of repudiation.
  6. [26]
    As a side issue, the respondent purports to exercise the right afforded under cl. 2.3(e) of Part D, namely to, in effect, recover by liquidated damages an amount representing 10% of the contract price. It does so, arguing that s. 99(1) of the ACL requires a refund of all monies paid other than any termination charge that is payable under the agreement. However, in this case, the respondent does not seek the recovery of the monies in dispute. Rather, it has retained them before refunding the balance of the payments. Ultimately nothing turns on the issue as the applicant has not taken up the issue and, in any event, it appears that the right of retention is afforded by cl. 2.3(c) of Part D.
  7. [27]
    I am fortified in my conclusion by considerations of the commercial purpose and objects of the contract. This was an expensive luxury item which was being built to personal specifications. The objects of the contract included the applicant receiving a luxury Cruiser[10] within the time frame specified in the contract and, undoubtedly, the respondent making a profit of a level to be expected in the luxury boat building industry.
  8. [28]
    The combined effect of the statute and the contractual terms meant that the applicant could lawfully terminate the contract at any time, without cause or reason. The combined effect of cl. 7 of Part A and cl. 3 of Part C is that the approximate date of delivery of the vessel, assessed at the time the contract was signed in August 2022, was August 2024 and, if not delivered by April 2025, the applicant had an unrestricted right to terminate the contract and recover all monies paid. It can be assumed that the defendant would incur considerable up-front expenses in the production of the vessel, and that those would only increase the closer one got to the date of delivery. As it happened, the applicant lawfully terminated the contract about 2 months short of the approximate delivery date.
  9. [29]
    The applicant’s submissions necessarily mean that commercial efficacy considerations of construction are satisfied by the possibility of the respondent carrying a substantial financial risk, presumably of at least several hundreds of thousands of dollars, which risk can materialise without fault on its part. I cannot agree. It neither makes good business sense nor accords with experience that the respondent would take on that risk, nor that a commercially minded party to the contract – a reasonable businessperson – would think that it would. As the respondent submitted, while the lay-by provisions of the ACL apply to this contract, it is not concerned with a relatively low cost off the shelf item. In those circumstances, a reasonable businessperson may well be prepared to carry the relatively meagre risk in order to promote sales. 
  10. [30]
    It is true that by cl. 3.1-3.3 of Part D, the title to the vessel remains with the respondent until full payment is made, and so, upon termination, it was open to the respondent to sell the vessel, or parts of it, to ameliorate any loss or to perhaps make a profit. While it can be accepted that it is likely that at least some parts of the vessel could be reused or sold, it is speculative to suggest that any further use of or sales of parts, or of the whole vessel, would cover the losses incurred by the lawful termination either in full or to a substantial extent. It makes commercial sense to have expected that at least some of the risk would be covered, to the extent permitted by statute, by providing for a termination charge, which is effected by the use of the term “otherwise repudiates” being understood as including the exercise of the statutory right of termination.
  11. [31]
    The applicant has argued that if the parties had intended that 10% of the contract price could be retained on the exercise of the statutory right to terminate, it would have said so, and used the words “terminate” or “termination”, as has occurred elsewhere in the contract.
  12. [32]
    The words “termination”, “terminate” and “terminated” are used a total of 10 times in the contract.[11] In five instances,[12] they refer to a contractual right afforded to one or the other of the parties on the occurrence a stated event to terminate the contract. In the other five instances,[13] the terms are used to provide for the survival of certain contractual rights upon the completion or termination of the contract. In no instance do they seek to draw a distinction between a repudiation at common law and statutory right to terminate the contract. It is undoubtedly the case that the contract could have been drawn in clearer terms, but I am not persuaded that the different use of terminology indicates an intention to exclude the statutory right of termination from the concept of a repudiation for the purposes of this contract.
  13. [33]
    While it should be acknowledged that there is some force in the applicant’s position, ultimately I am not persuaded that it is the correct construction of the contract.
  14. [34]
    My findings necessarily mean that I do not need to consider the respondent’s alternative submission as to the insertion of an implied term into the contract. However, had it been necessary, I would not have found in the respondent’s favour. Briefly, my reasons would have been firstly based on the requirements in s. 97 of the ACL that effectively require the right to charge a termination charge to be contained within the agreement. The implication of such a term does not sit easily with that requirement.
  15. [35]
    Secondly, my findings in favour of the applicant would have necessarily meant that it was not necessary to give commercial efficacy to the contract to understand the term “otherwise repudiates” in the manner contended for by the respondent. It could not then be said that the implication of the term was necessary (not just desirable) to give efficacy to the contract itself. That is, I would have found that the contract operated satisfactorily in a commercial sense without the implied term.

Costs

  1. [36]
    Each party contended that, if successful, they should get their own costs. Neither party contended that anything other than the usual order should be made. Independently of tat, in my view, the usual order is appropriate.

Footnotes

[1]  Sections 96 – 99 of the ACL.

[2]  Part D is entitled: “Part D: General Terms and Conditions”.

[3]Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, [46]-[51].

[4]  (2022) 11 QR 648, [53].

[5]  For example, Heyman v Darwins Ltd [1942] AC 356, per Macmillan LJ at 371 and Wright LJ at 378;

[6]Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, [44].

[7]  [2010] NSWCA 64, [167].

[8]Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council, supra at [179].

[9]Heyman v Darwins Ltd, supra at 378; Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd, ibid.

[10]  This is the term used in the contract.

[11]Clauses 2.1(b) and 3 of Part C, clauses 1.4(d), 2.3(a), 3.2(d), 3.3 and 5.12 (twice) of Part D and clause 7.5 (twice) of Part E.

[12]  Clauses 2.1(b) and 3 of Part C and clauses 1.4(d), 2.3(a), 3.2(d) of Part D.

[13]Clauses 3.3 and 5.12 of Part D and 7.5 of Part E.

Close

Editorial Notes

  • Published Case Name:

    Gripske v Maritimo Sales Australia Pty Ltd

  • Shortened Case Name:

    Gripske v Maritimo Sales Australia Pty Ltd

  • MNC:

    [2025] QDC 133

  • Court:

    QDC

  • Judge(s):

    Byrne KC DCJ

  • Date:

    26 Sep 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Heyman v Darwins Limited (1942) AC 356
2 citations
Jump To
Cite 1 - (1942) AC 356
Cite 2 - (1942) AC 356
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
2 citations
Jump To
Cite 1 - (2007) 233 CLR 115
Cite 2 - (2007) 233 CLR 115
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
2 citations
Jump To
Cite 1 - (2015) 256 CLR 104
Cite 2 - (2015) 256 CLR 104
Phoenix Commercial Enterprises v City of Canada Bay Council [2010] NSWCA 64
2 citations
Jump To
Cite 1 - [2010] NSWCA 64
Cite 2 - [2010] NSWCA 64
QNI Resources Pty Ltd v North Queensland Pipeline No 1 Pty Ltd(2022) 11 QR 648; [2022] QCA 169
2 citations
Jump To
Cite 1 - (2022) 11 QR 648
Cite 2 - (2022) 11 QR 648

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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