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 429DECISION: Plaintiff entitled to second mortgage over balance of subject land.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONHAMILTON 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…
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- Case
- [2000] NSWSC 470
- Decision Date
CaseChat Overview and Summary
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.
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