Box v Copeland [2026] QDC 113

DISTRICT COURT OF QUEENSLAND CITATION: Box v Copeland [2026] QDC 113 PARTIES: CRAIG ANDREW BOX (plaintiff) v CATHERINE COPELAND (defendant) FILE NO: 1669 of 2024 DIVISION: Civil PROCEEDING: Claim and statement of claim ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 18 August 2026 DELIVERED AT: Brisbane HEARING DATE: 3 August 2026 JUDGE: Grigg DCJ ORDERS: 1. The plaintiff’s claim is dismissed. 2. I will hear the parties as to costs. CATCHWORDS: CONTRACTS – REPUDIATION – ANTICIPATORY BREACH – where the plaintiff loaned the defendant money pursuant to a Deed – where the defendant’s solicitors said words to the effect that the defendant owed the plaintiff no money – where the plaintiff accepted that statement as repudiation of the Deed – where the defendant submits she did not repudiate the Deed – whether a reasonable person in the plaintiff’s position would have understood the defendant’s conduct as evincing an intention not to be bound by the Deed CONTRACTS – REPUDIATION – ANTICIPATORY BREACH – ACCEPTANCE OF REPUDIATION – where the plaintiff had fully discharged his obligations under the Deed – where the defendant was only required to repay the loan upon the occasion of specified events – where the repayment events had not yet occurred – where the defendant purportedly repudiated the Deed – whether the defendant’s repudiation of the Deed entitled the plaintiff to terminate the Deed and claim damages LEGISLATION: -- 1 of 10 -- 2 CASES: Bowes v Chaleyer [1923] HCA 15; (1923) 32 CLR 159 Clough Projects Australia Pty Ltd v Elecnor Australia Pty Ltd [2026] NSWCA 111 DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423 Foran v Wight [1989] HCA 51; (1989) 168 CLR 385 Frost v Knight (1872) LR 7 Ex 111 Hochster v De la Tour (1853) 2 E & B 678 Mackenzie v Rees [1941] HCA 21; (1941) 65 CLR 1 Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 COUNSEL: Plaintiff appeared self-represented S. Hogg on behalf of the defendant SOLICITORS Plaintiff appeared self-represented HWLE Lawyers appeared for the defendant Introduction [1] In 2022 the plaintiff and the defendant were in a domestic relationship. [2] In February 2022, the plaintiff lent the defendant $270,000 (Loan Amount) to assist her to purchase a residential property. On or around 19 February 2022, following receipt of the Loan Amount, the defendant purchased a property for $735,000 (Wynnum Property). The defendant used the Loan Amount and a bank loan secured by a mortgage to purchase the Wynnum Property. [3] Following the advance of the Loan Amount, the plaintiff and the defendant executed a document entitled Deed of Loan Agreement (Deed) in June 2022.1 [4] The relevant clauses of the Deed provide that: 1. The Lender has loaned to the Borrower the sum of $270,000.00 (two hundred and seventy thousand dollars) (herein called the “loan monies”). 2. The unpaid balance of the loan monies shall be repaid by the Borrower to the Lender in full upon the earlier of any of the following: a) Upon the Borrower disposing of her interest in the Property; b) Upon the death of the Borrower; or c) Upon the 29th of March 2029 All payments to an account or in such method as may be directed by the Lender. Any partial payments made shall be notified by the Borrower to the Lender, and the receipt acknowledged by the Lender. 1 The parties dispute the precise date of executing the Deed, but the pleadings record that the defendant signed the Deed on 14 June 2022 and the plaintiff signed it on 16 June 2022. -- 2 of 10 -- 3 3. Interest shall accrue on the loan calculated at the rate of 0% per annum on the balance outstanding. Interest will remain fixed for the duration of the loan and is non-compounding. Total amount the Borrower shall repay if the loan term reaches the maximum (7) seven-year term is $270,000.00 … 5. In the event that the Borrower: a. Dies or becomes bankrupt; b. Is unable to pay her debts or enters into an arrangement with creditors for the purpose of avoiding bankruptcy; c. Defaults on repayment of the loan; d. Is in breach of any other clause of this agreement Then the Borrower shall be in default and immediate repayment of all the loan monies plus interest accrued is required upon demand of the Lender and in the event of failure to pay the outstanding balance of the loan plus interest then the Lender shall be entitled to exercise his rights as mortgagee. … 9. Variation of this agreement must be in writing: No variation or waiver of, or any consent to any departure by a party from, a provision of this agreement is effective unless it is confirmed in writing signed by both the Lender and the Borrower. [5] The parties admit they entered into a legally binding deed with the above terms. [6] The relationship came to an end in November 2022. [7] Shortly after separating, on 23 November 2022, the plaintiff emailed the defendant asking when she would be able to complete the repayment of the Loan Amount before 2023. Several texts were sent by the plaintiff to the defendant in December 2022 demanding the defendant return the Loan Amount. [8] Following further communications between the parties, on 28 January 2023 the plaintiff sent the defendant a note titled “debt forgiveness letter” (Forgiveness Letter). The Forgiveness Letter was signed by the plaintiff and provided: “The Lender, for no payment in consideration, has agreed to release and forgive the borrower, for the total debt of $270,000, effective 28th Jan 2023. Reasoning: due to extenuating circumstances, combined with the amount of the debt you owe, I have taken it upon myself to completely relieve you of this debt.” [9] The defendant rejected the plaintiff’s offer to forgive the debt and never signed the Forgiveness Letter. -- 3 of 10 -- 4 [10] On 2 December 2023, the plaintiff sent a text message to the defendant asking when she would be attending to the return of the Loan Amount. On 22 December 2023, the plaintiff, via text message, demanded that the defendant pay back the full Loan Amount on or before 22 March 2024, failing which he would take action to have the debt repaid in full. [11] On 6 February 2024, the plaintiff’s solicitors wrote to the defendant’s solicitors stating words to the effect that the plaintiff required the defendant to comply with repayment obligations under the Deed. [12] On 15 March 2024 the defendant responded through her solicitors stating words to the effect that she “owes [the plaintiff] no money” (March 2024 Letter). [13] On 1 May 2024 the plaintiff’s solicitors wrote an email to the defendant’s solicitors informing the defendant that the plaintiff accepted the March 2024 Letter as a repudiation of the Deed by the defendant and that he now sought immediate repayment of the Loan Amount in full. [14] To date, the defendant has not repaid the Loan Amount. [15] The plaintiff alleges that: (a) the March 2024 Letter constitutes a repudiation of the Deed by the defendant which he accepted; (b) the Deed has been terminated on 1 May 2024; and (c) he is entitled to damages. [16] The defendant submits that the plaintiff’s claim should be dismissed on the following bases: (a) she has not repudiated the Deed; (b) the Deed remains on foot; (c) alternatively, if she has repudiated the Deed: (i) there has been no valid termination of the Deed as the plaintiff was unable to accept her repudiation as the plaintiff had evinced an intention no longer to be bound by the Deed’s terms when he demanded repayment of the Loan Amount well before the due date for payment; or (ii) the plaintiff does not have a present entitlement to repayment or damages, and his right will only arise when one of the matters at clause 2 of the Deed occurs (see paragraph [4] above). [17] The defendant submitted she has not ‘failed’ to repay the plaintiff any money and says that no money is presently due to the plaintiff and she remains ready, willing and able to perform her obligations under the Deed. [18] The plaintiff commenced proceedings claiming damages on 18 June 2024. -- 4 of 10 -- 5 [19] The defendant filed a defence and counterclaim on 24 July 2024 which denied that she owed the plaintiff the Loan Amount and claimed $444,805 in equitable compensation and interest on that amount. [20] On 29 May 2026 the defendant applied to the Court for leave to discontinue the counterclaim.2 Until that time, the defendant had, for two years, persistently denied owing the plaintiff any money as a result of entering the Deed and had pursued the counterclaim against him. [21] This matter is to be determined based on whether there has been a repudiation of the Deed and whether that repudiation entitled the plaintiff to seek immediate payment of the Loan Amount. Relevant Legal Principles What constitutes repudiatory conduct? [22] In Clough Projects Australia Pty Ltd v Elecnor Australia Pty Ltd [2026] NSWCA 111 at [103], Bell CJ summarised principles of repudiation, noting that:3  repudiation is a “serious matter and is not to be lightly inferred”: Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 at 32; and  repudiation requires “conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party’s obligations”: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 at [44]. [23] The High Court in Bowes v Chaleyer [1923] HCA 15; (1923) 32 CLR 159 at 169 stated that the repercussion of an anticipatory breach is that it “gives the other party the option of treating the contract at an end”. [24] In Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 (Progressive Mailing House) at 33, Mason J (with whom Dawson J agreed), stated that: “What needs to be established in order to constitute a repudiation is that the party evinces an intention no longer to be bound by the contract or that he intends to fulfil the contract only in a manner substantially inconsistent with his obligations and not in any other way” (referring to Shevill v Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 159). [25] Whether a person’s conduct conveys a repudiation of contractual obligations is to be assessed objectively.4 2 pursuant to rule 305(b) of the Uniform Civil Procedure Rules (UCPR). 3 See also Shevill v Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620, at 625-626; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1989) 166 CLR 623, at 657-658. 4 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1989) 166 CLR 623, at 657- 658; Koompahtoo Local Aboriginal Land Council v Sanpine [2007] HCA 61; (2007) 233 CLR 115 at [44]. -- 5 of 10 -- 6 [26] There have been limitations to the doctrine of anticipatory breach expressed in some courts. [27] In Progressive Mailing House, Brennan J referred to authorities which provide that the doctrine of anticipatory breach does not apply to contracts completely executed on one side and that the time for payment of a debt due on a particular day cannot be accelerated despite the debtor declaring his intention to dispute his liability. Brennan J (at [9]) referred to Dixon J’s statement in Mackenzie v Rees [1941] HCA 21; (1941) 65 CLR 1, at 15-16 (Mackenzie), that there was then no English decision which applied the doctrine of anticipatory breach to contracts completely executed on one side and that that was the view of Anson in his first edition of the Law of Contracts (1879). Dixon J (at 16) quoted from the American Restatement of the Law of Contracts, Art. 318 e, p.477: “There must be some dependency of performances in order to make anticipatory breach possible.” Consideration Terms of the Deed [28] It is not disputed that the parties entered into the Deed, which reflected that the plaintiff had loaned the defendant the Loan Amount. Pursuant to the Deed, the Loan Amount was repayable on the earliest of several events. It is not in dispute that none of those events (disposal of the defendant’s interest in the Wynnum Property, the defendant’s death, 29 March 2029, or relevant default events) has occurred as at the date of this litigation. Did the defendant repudiate the deed? [29] The evidence of the defendant is that she is ready, willing and able to repay the loan in accordance with the terms of the Deed and that she was ready to do so when the March 2024 Letter was sent.5 [30] On the other hand, the plaintiff contends that the defendant has repudiated the Deed by her denial of any obligation to repay the Loan Amount and that he has accepted that repudiation terminated the Deed. [31] The assertions in the March 2024 Letter clearly articulate that the defendant did not consider herself bound to comply with her obligations under the Deed. [32] The defendant asserted she did not owe the plaintiff any money. This is clear evidence that the defendant did not intend to be bound by the Deed and would convey to a reasonable person in the plaintiff’s position that the defendant had renounced her obligation to pay. Originally, and for the last two years until shortly before trial, the defendant maintained she owed nothing and in fact had a counterclaim. She now accepts that she has an obligation to pay the plaintiff $270,000 and the matter is one of timing. 5 Transcript of hearing on 3 August 2026, at pages 1-55 lines 37 to 48, 1-56 line 1. -- 6 of 10 -- 7 [33] The defendant’s conduct in initially denying any such obligation is what is known as an anticipatory breach. The authorities confirm that the starting point under the doctrine of anticipatory breach is that a lender may accept the repudiation of the contract and sue immediately rather than wait: Hochster v De la Tour (1853) 2 E & B 678; Frost v Knight (1872) LR 7 Ex 111; Foran v Wight [1989] HCA 51; (1989) 168 CLR 385. However, as referred to above, there are some limitations. [34] The defendant contended that given the long history of the relationship and the Forgiveness Letter, the assertions in the March 2024 Letter were a reasonable interpretation of the state of the contractual relations between the parties because the plaintiff had purported to forgive the debt by the Forgiveness Letter. However, that stance has not been substantiated. The plaintiff’s unchallenged evidence was that the defendant rejected his forgiveness of the debt. Further, the representations in the March 2024 Letter proceeded on the basis that the plaintiff had repudiated some other arrangement. The plaintiff has not accepted that position, nor has that version of events been maintained by the defendant. [35] The defendant’s evidence was that she was ready, willing and able to comply with her obligations under the Deed at the time the March 2024 Letter was sent. That evidence does not sit well with the contents of the March 2024 Letter, which set out in some detail why the defendant denied any obligation to the plaintiff. [36] The intention “evinced” by the defendant was an intention not to be bound by the contract.6 [37] The defendant also contended that because the plaintiff had made demands for payment far in advance of the requirements under the Deed, this meant he was also not ready, willing and able to perform the Deed. The defendant referred to Foran v Wight.7 In Foran v Wight,8 Mason CJ described the essence of readiness and willingness in relation to the entitlement to bring a claim: “… in a damages context … when the defendant has dispensed with performance by the plaintiff of a mutually dependent and concurrent obligation, it remains for the plaintiff to show, not that he was ready and willing to perform, but that he would have been ready and willing to perform had the defendant not dispensed with performance.” [38] It is correct that the authorities state that a party seeking to terminate for anticipatory breach must themselves be in a position to perform. In DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423, at 433, the High Court said: “A party in order to be entitled to rescind for anticipatory breach must at the time of rescission himself be willing to perform the contract on its proper interpretation. Otherwise he is not an innocent party, the common description of a party entitled to rescind for anticipatory breach” 6 Carr v J S Berriman Pty Ltd [1953] HCA 31; (1953) 89 CLR 327, at 350-352. 7 [1989] HCA 51; (1989) 168 CLR 385, at 404-406. 8 [1989] HCA 51; (1989) 168 CLR 385, at 403. -- 7 of 10 -- 8 [39] I note this dictum is not without controversy.9 [40] In any event, I reject the defendant’s contention. This matter is distinguishable from those authorities. The plaintiff had already performed his obligations under the Deed. The Loan Amount had been advanced and was an irrevocable benefit. There was nothing for the plaintiff left to do. He was, therefore, “ready, willing and able” at the time of the defendant’s repudiation. Does the defendant’s repudiatory conduct entitle the plaintiff to terminate the Deed and sue for damages? [41] There is a dispute as to whether a promise to pay money is something which can be repudiated. The limitation is as expressed by Dixon J in Mackenzie. In circumstances where a bilateral contract is an executed contract, with the promisee having nothing further to do, and the only outstanding obligation is for the promisor to pay, the creditor cannot accept the renunciation and sue before the due date for payment. Rather, in that context, the creditor must wait until the due date for payment. [42] Here, the loan repayment amount (the debt) was not due and payable at the times demanded by the plaintiff, nor at the date the defendant allegedly repudiated the Deed. [43] If there is no dependency on the performance of the creditor, who has given an irrevocable benefit to the debtor, the doctrine of anticipatory breach has no application. [44] The purported termination does not accelerate the obligation to pay. [45] The limitation expressed by Dixon J is not so much concerned with an obligation to do some future thing, as opposed to the promisor having nothing further to do, having exhausted and complied with all of its obligations. [46] In the case of a bilateral contract where one party has fully performed their obligations (sometimes referred to as a partially executed contract), only one party has outstanding obligations. [47] The issue is whether an anticipatory breach can be relied on in these circumstances. In Mackenzie, Dixon J noted that there was then no English decision which applied the doctrine of anticipatory breach to contracts completely executed on one side. That statement was made in the context of an obligation to pay money. Even if it was suggested that Mackenzie was not intended to have a more general application, Dixon J’s statement is clear in relation to the obligation to pay money. [48] Brennan J, in Progressive Mailing House, referred to Dixon J’s statement and distinguished circumstances where the benefit given by the promisee is revocable or irrevocable: “[10] …Whether the contract be executed or executory, it can be said that repudiation causes the innocent party loss of the benefit of the contract. Indeed, where the innocent party has fully performed his obligations, a 9 See Deane J in Foran v Wight [1989] HCA 51; (1968) 168 CLR 385, at 437-438; Upside Property Group Pty Ltd v Tekin [2017] NSWCA 336; (2017) 19 BPR 38,137, at [15]; Sharjade Pty Ltd v Commonwealth of Australia [2009] NSWCA 373; (2009) 15 BPR 28,443, at [60]-[73]. -- 8 of 10 -- 9 repudiation by the other party deprives him not only of the profit to which his bargain entitled him but also of compensation for the cost incurred in performing his obligations. [11] On the other hand, it can be said that a party who has performed his obligations under a contract is entitled to no more and no less than the full and timeous performance of the obligations resting on the other party, and that an immediate award of damages for anticipatory breach of those obligations gives him more than the benefit of his bargain. There is substance in the observation by Williston on Contracts, 3rd ed. (1968), vol. II, §1313 that- “The law can properly excuse a promisor from performing whenever justice requires, but it does not have the same liberty of enlarging a promisor's contractual obligations.” … [12] …Where an innocent party has done no more than perform all his obligations under a contract in accordance with its terms, there is something to be said for a rule that gives him no more than he bargained for, that is to say, damages against the repudiating party for failure to discharge that party's obligations as and when they fall due. A strong case can be made for such a rule when the innocent party's performance of the contract results in the conferring of an irrevocable benefit on the other party and the only executory obligation of the repudiating party is to pay money at a future time: see Williston on Contracts, 3rd ed. (1968), vol. 11, §1326. Why should repudiation entitle the innocent party to accelerated payment when the contract stipulates that, in the circumstances that have occurred, that party should receive payment at a later time? [13] However, there is no warrant for such a rule when the innocent party can and does revoke the benefit which the innocent party’s performance of its obligations conferred on the repudiating party. Revocation of the benefit places the parties in a position similar to the position they would have been in if the contract had remained executory. Unless the innocent party has a right to damages in these circumstances, he cannot recover the benefit of his bargain. If he revokes the benefit that was conferred on the repudiating party, he cannot insist on the performance by that party of the interdependent obligations that fall due thereafter. Unless he is entitled to damages, he can obtain the benefit of the bargain only by foregoing the right to revoke the benefit, trusting that the other party will repent and perform the obligations he repudiated. The principles relating to anticipatory breach are intended to avoid the necessity for useless performance and to mitigate the damages for which the repudiating party is liable by permitting the innocent party to dispose of any property, services or other benefits to which the repudiating party would have been entitled under the contract.” (emphasis added) -- 9 of 10 -- 10 [49] This matter falls within the first category described by Brennan J. The benefit given by the plaintiff (the loaned money) to the defendant cannot be revoked. The only executory obligation to be performed is the defendant’s obligation to pay the debt at a future date which has yet to crystallise. [50] As submitted by the defendant, once one of the specified events in the Deed occurs and the defendant does not fulfil her repayment obligations at that time, only then does the plaintiff’s entitlement to damages arise. Conclusion [51] The plaintiff has no present entitlement to damages. [52] It follows that there should be no award of interest. Costs [53] I will hear the parties as to costs. -- 10 of 10 --