Alanbert Pty Ltd v Bulevi Pty Ltd - [2000] NSWSC 261

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 52

CASES 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
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
THURSDAY, 6 APRIL 2000
4528/97 ALANBERT PTY LIMITED & ORS v BULEVI PTY LIMITED & ANOR
JUDGMENT
His 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.…

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 261
Decision Date: 6 April 2000

CaseChat Overview and Summary

Alanbert Pty Ltd initiated legal proceedings against Bulevi Pty Ltd, contesting a joint venture agreement related to the subdivision of land. The dispute centred on the failure to achieve rezoning, which was a key condition for the venture's success. The matter was heard by the Federal Court of Australia. The core legal issues revolved around whether the joint venture agreement was discharged due to frustration, and if the actions of Bulevi Pty Ltd amounted to duress and misleading or deceptive conduct under the Trade Practices Act.

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.

Orders