CITATION: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261 revised - 3/07/2000 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 4528/97 HEARING DATE(S): 5 & 6 August, 14 & 15 October, 2, 4 & 17 December 1998, 9, 12, 15, 16 & 24 March, 29 April, 25 May and 10 & 22 June 1999 JUDGMENT DATE: 6 April 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 [126] - General contractual principles - Discharge - Frustration - Commercial frustration - Rezoning not achieved - EQUITY [52] - General principles - Duress - What constitutes - TRADE AND COMMERCE [92], [94] - Misleading or deceptive conduct - Particular classes of conduct - Real estate transactions - Joint venture for subdivision of land - Whether representation made in absolute terms that further subdivision would be achieved - Proceedings, evidence and procedure - Pleading - Necessity for reliance on Trade Practices Act s 51A to be pleaded or particularised. LEGISLATION CITED: Fair Trading Act 1987 s 42
Frustrated Contracts Act 1978
Supreme Court Act 1970 s 94
Trade Practices Act 1974 (Cth) s 52CASES CITED: Adelaide Petroleum NL v Poseidon Ltd (1988) ATPR 40-901
Australian Competition and Consumer Commission v IMB Group Ltd (1999) ATPR 41-704
Caratti v DFC of T (1993) 93 ATC 5,192
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Cummings v Lewis (1993) 41 FCR 559
Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696
Dimskal Shipping Co SA v International Transport Workers Federation [1992] 2 AC 152
Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 11 ACSR 642
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82
Gould v Vaggelas (1985) 157 CLR 215
Mahlo v Westpac Banking Corporation Ltd [1999] NSWCA 358
Phoenix Court Pty Ltd v Melbourne Central Pty Ltd, (1997) ATPR (Dig) 46-179
Scolio Pty Ltd v Cote (1992) 6 WAR 475
Westpac Banking Corporation v Cockerill (1998) 152 ALR 267
Carter and Harland, Contract Law in Australia (3rd Ed, 1996) [2001]
Mason and Carter, Restitution Law in Australia [1210]DECISION: Plaintiffs' claim to set aside deed for duress not made out; defendants' claims for misleading or deceptive conduct and negligence not made out; defendants' claim for payment for extra work established.
IN THE SUPREME COURT
HAMILTON J
OF NEW SOUTH WALES
EQUITY DIVISIONTHURSDAY, 6 APRIL 2000
4528/97 ALANBERT PTY LIMITED & ORS v BULEVI PTY LIMITED & ANOR
JUDGMENTHis Honour:
1 These proceedings arise from transactions concerning vacant land (“the land”) at Hilltop in Wingecarribee Shire with potential for subdivision into two hectare (five acre) lots.…
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- Case
- [2000] NSWSC 261
- Decision Date
CaseChat Overview and Summary
The court examined whether the failure to obtain rezoning constituted a frustrating event that discharged the contract. It considered whether Bulevi Pty Ltd's representations about achieving further subdivision were absolute and whether the failure to do so constituted a fundamental breach. Additionally, the court assessed whether there was duress in the agreement, and if Bulevi Pty Ltd's conduct was misleading or deceptive. The court also deliberated on the necessity of pleading reliance on specific sections of the Trade Practices Act.
The court determined that the failure to achieve rezoning did not amount to commercial frustration sufficient to discharge the contract. It concluded that Bulevi Pty Ltd's representations were not absolute, and therefore, the failure to achieve further subdivision did not constitute a fundamental breach. The court also found no evidence of duress or misleading or deceptive conduct. It was determined that reliance on the Trade Practices Act did not need to be specifically pleaded, as the conduct was adequately covered by other provisions in the proceedings. The court ruled in favour of Bulevi Pty Ltd, dismissing Alanbert Pty Ltd's claims.
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