Case: Carr v J A Berriman Pty Ltd [1953] HCA 31 ; (1953) 89 CLR 327 
Outcome: applied
It is common ground that Bective Station did not make full payment under its first contract to purchase wheat from AWBA until a date which the evidence does not fix precisely but which was shortly after 19 August 2003. It was on 19 August 2003 that AWB Limited (presumably acting on behalf of AWBA) issued a statement of liquidated claim against Bective Station in the District Court of New South Wales. Clause 12 of the Standard Terms authorised AWBA to withhold delivery under the Second Contract until all overdue payments were made under the first contract. AWBA was thus entitled to withhold delivery throughout March 2003 and, indeed, until at least late August 2003. Bective Station did not thereafter request delivery of wheat or purport to terminate the Second Contract for breach because of AWBA's failure to deliver wheat under the Second Contract. Clause 15 of the Standard Terms, which provided that stipulations as to time were of the essence, did not operate to bring the contract to an end; assuming clause 15 to have not earlier ceased to operate because of Bective Station's overdue payments, it authorised an innocent party to elect to terminate the contract ( Carr v J A Berriman Pty Ltd [1953] HCA 31 ; (1953) 89 CLR 327 per Fullagar J at 348). 19 The contentions of Bective Station that the Second Contract was terminated in March 2003 by reason of non-delivery of the wheat as required by the Second Contract, or alternatively on or before 31 August 2003 by effluxion of time, therefore fail. 20 Bective Station's further alternative contention that the Second Contract was terminated on 20 October 2003, or five days thereafter, is founded on AWB Limited's letter dated 20 October 2003. Omitting formal matters that letter was in the following terms: 'The purpose of this correspondence is to formerly [sic] notify Bective Station Pty Ltd of their default in relation to taking delivery of AWB sales contract 2301055 (AWB reference) dated 6 th November 2002. The expiration date of the contract was 30 th August 2003. Under the terms and conditions of the contract AWB has the right, at AWB's discretion, to resell the quantity of grain in default at fair market value. Bective Station Pty Ltd, as the party in default, is liable for the loss incurred by AWB as a result of reselling the grain at a reduced price. If AWB does not receive direction from Bective Station Pty Ltd within 5 business days of receiving this letter, AWB in accordance with the terms and conditions of the contract will washout Bective Station. AWB have obtained third party independent advice quoting fair market value for wheat delivered into a buyers nominated store in the Liverpool Plains region. Should you accept a washout AWB will apply market value as at the end of the contract the price being $215/MT, if not AWB will apply spot market price to determine fair value, indication as at 20/08/03 of $200/MT. A washout cost per metric tonne is based off the contract (2301055) price for August of $395.50 less fair market value, the net cost of the washout is on 7000MT and is due 30 days end of week. AWB will issue a tax invoice within 5 business days. For your information the cost of a washout basis the October price is $1,368,500. Should you wish to formerly [sic] accept washout of the contract as at the end of August please contact me directly on [telephone number given] .'