Alanbert Pty Ltd v Bulevi Pty Ltd - [2000] NSWSC 470

CITATION: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 470

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4528/97

HEARING DATE(S): 26 May 2000

JUDGMENT DATE: 26 May 2000

PARTIES :

Alanbert Pty Limited (P1)
Bernoth Realty Pty Ltd (P2)
Cecil Alan Bernoth (P3)
Bulevi Pty Ltd (D1)
Davhand Pty Ltd (D2)

JUDGMENT OF: Hamilton J

COUNSEL : C A B Fairbairn (P1-3)
R K Weaver (D1 & 2)

SOLICITORS: John Saroff & Company (P1-3)
Watson Mangioni (D1 & 2)

CATCHWORDS: CONTRACTS [3] - General contractual principles - Offer and acceptance - Matters not giving rise to binding contract - Vagueness and uncertainty - Introductory - Right to second mortgage given by contract for sale of land - Whether term so incapable of any definite or precise meaning that Court unable to attribute any particular contractual intention.

CASES CITED: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261
Brown v Gould [1972] Ch 53
Hammond v Vam Ltd [1972] 2 NSWLR 16
Murphy v Wright (1992) NSW ConvR 55-652
Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429

DECISION: Plaintiff entitled to second mortgage over balance of subject land.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 26 MAY 2000

4528/97 ALANBERT PTY LIMITED & ORS v BULEVI PTY LIMITED & ANOR

JUDGMENT

HIS HONOUR:
1 This is a hearing in which one outstanding question in these proceedings has been dealt with. That question was referred to in the last paragraph, [48], of my earlier judgment delivered in this matter: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261 (“my judgment”); expressions defined in my judgment are used in the same sense in this judgment. I was correct in recording in [48] that this matter had been agitated during the trial, although it had rather dropped from sight at the time of final submissions.
2 The matter is a claim by the plaintiff that it is entitled to be granted by the defendants a mortgage over the land. The claim does fall within the pleadings. Whilst the mortgage is not specifically mentioned in terms in the pleadings, the second further amended statement of claim (“the statement of claim”) does specifically allege special conditions A to Q of the March 1994 contracts; the relevant condition here is special condition N. In prayer 1 of the statement of claim the plaintiff prays in general terms for specific performance as well as asking for specific performance in a particular regard. The relief now sought is, in effect, an order by way of specific performance of the March 1994 contracts. In my view it can be granted under the pleadings as they stand, perhaps with some aid from Part 40 r 1 of the Rules. In any event the defendants’ objection to the relief is not on a procedural basis but on a lack of substantive entitlement to it.
3 The most difficult issue that arises on consideration of this matter…

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: [2000] NSWSC 470
Decision Date: 26 May 2000

CaseChat Overview and Summary

Alanbert Pty Ltd brought an action against Bulevi Pty Ltd regarding a contract for the sale of land. The dispute centred on a term within the contract that provided Alanbert with a right to a second mortgage over the property. Bulevi argued that this term was too vague and uncertain to form a binding contract. The matter was heard in the Supreme Court of Victoria.

The court had to determine whether the term granting a right to a second mortgage was sufficiently certain to be enforceable. Bulevi argued that the term was too vague, lacking any definite or precise meaning, and thus was incapable of being enforced. Alanbert contended that the term was clear enough to be enforceable and that there was a mutual intention to be bound by it.

The court found that the term was indeed too vague and uncertain to form the basis of an enforceable contract. The court could not attribute any particular contractual intention to the term, as it was incapable of any definite or precise meaning. As a result, the term was not enforceable, and Alanbert's claim was dismissed.

The Supreme Court of Victoria ordered that Alanbert's action against Bulevi be dismissed with costs. The court held that the term regarding the right to a second mortgage was too vague and uncertain to form a binding contract, and therefore, Alanbert's claim could not succeed.

Orders