Al Maha Pty Limited v Coplin - [2018] NSWSC 1623

Supreme Court

New South Wales

Medium Neutral Citation: Al Maha Pty Limited v Coplin [2018] NSWSC 1623
Hearing dates: 22 October 2018
Date of orders: 24 October 2018
Decision date: 24 October 2018
Jurisdiction: Equity - Real Property List
Before: Kunc J
Decision:
Option validly exercised; specific performance ordered; cross summons dismissed; defendant to pay plaintiffs’ costs

Catchwords:
LAND LAW — Conveyancing — Options — Call options — Construction — Notice of exercise of option able to be given to grantor’s conveyancer — Whether option validly exercised by notice given to conveyancer no longer retained by grantor at time of purported exercise
EQUITY — Equitable remedies — Specific performance — Set off — Court’s power to order legal costs owing by vendor to be set off against purchase price
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Al Maha Pty Ltd v Coplin [2017] NSWCA 318
Cherry v Steele-Park [2017] NSWCA 295
Coplin v Al Maha Pty Ltd [2016] NSWSC 1745
Fussell v Deigan [2018] NSWSC 1419
Goldsbrough Mort & Co Ltd v Quinn (1910) 10 CLR 674
Lahoud v Lahoud [2012] NSWSC 284
Miller v DPP [2004] NSWCA 249
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd & Anor (2015) 256 CLR 104; [2015] HCA 37
Pratt & Anor v Hawkins (No 2) (1991) NSW Conv55-592
Thomas Developments Pty Ltd v Setlee Pty Ltd [2002] NSWSC 816; 11 BPR 20,495
Category: Principal judgment
Parties:
Al Maha Pty Ltd ABN 71118230087 (First Plaintiff)
Sophia Norma Bechara (Second Plaintiff)
Iraklis Gary Coplin (Defendant)
Representation:
Counsel:
T M Faulkner SC and A F Garsia (Plaintiffs)
B Oliak (Defendant)
Solicitors:
HWL Ebsworth (Plaintiffs)
De Pasquale Lawyers (Defendant)

File Number(s): 2018/39242
Publication restriction: No

Judgment

Summary

This dispute is about whether an option to buy land was validly exercised.
By a Put and Call Option Agreement dated 16 October 2014 (the “Agreement”), the defendant (“Mr Coplin”) granted the first plaintiff, Al Maha Pty Ltd (“Al Maha”) an option to purchase Mr Coplin’s home for $2,200,000 (the “Option”). The Agreement attached the contract for sale of land which would become binding upon exercise of the Option (the “Contract”).
The Agreement provided that one way the Option could be exercised was by Al Maha giving the requisite notice to Mr Coplin’s “solicitor/conveyancer”. The Contract identified Mr Coplin’s “solicitor/conveyancer” as V J Tait & Associates, a conveyancing firm (“Ms Tait”).
On 21 December 2017, Al Maha purported to exercise the Option by serving the necessary paperwork on Ms Tait’s office. However, by that time Ms Tait was no longer retained by Mr Coplin.
Al Maha argued that, on the proper construction of the Agreement, it had validly exercised the Option because Ms Tait remained Mr Coplin’s “solicitor/conveyancer” by reason of her being so described in the Contract. Mr Coplin, relying on a decision of Young J (as his Honour then was), submitted that those words in the Agreement referred to Mr Coplin’s “solicitor/conveyancer” retained as such at the time when the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWSC 1623
Decision Date: 24 October 2018

CaseChat Overview and Summary

In the case of Al Maha Pty Limited v Coplin, the dispute centred on whether a call option was validly exercised when notice of the exercise was given to a conveyancer who was no longer retained by the grantor at the time the option was purportedly exercised. The case was heard in the Supreme Court of Queensland. The plaintiff, Al Maha, sought specific performance of a contract for the sale of property, arguing that the defendant, Coplin, had validly exercised a call option to purchase the property. The defendant contended that the option was not validly exercised as the notice of exercise was given to a conveyancer who was no longer retained by the grantor.

The primary legal issue for the court was to determine whether the option was validly exercised by giving notice to a conveyancer who was no longer retained by the grantor at the time of the purported exercise. A secondary issue was whether the court could order that legal costs owing by the vendor be set off against the purchase price. The court had to interpret the terms of the option, considering the authority of the conveyancer at the time of the notice of exercise and the principles of equity in relation to specific performance and set off.

The court held that the option was validly exercised by giving notice to the conveyancer, as the conveyancer had the authority to accept the notice on behalf of the grantor. The court found that the conveyancer's authority was not dependent on their continued retention by the grantor at the time of the notice of exercise. The court also held that it had the discretion to order that legal costs owing by the vendor be set off against the purchase price, as this was an appropriate exercise of equitable jurisdiction to achieve a just outcome. The court ordered specific performance of the contract, with the purchase price adjusted to include the legal costs owing by the vendor.

The final orders of the court were that the defendant exercise the call option to purchase the property, with the purchase price to include the legal costs owing by the vendor. The court's decision provides guidance on the validity of the exercise of call options and the court's power to order set off of legal costs in specific performance cases.

Orders