Allam Homes v Vocata - [2003] NSWSC 628

Reported Decision:
(2004) NSW ConvR 56-090

Supreme Court

CITATION: Allam Homes v Vocata [2003] NSWSC 628

HEARING DATE(S): 10 & 11 July 2003

JUDGMENT DATE:
15 July 2003

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: Caveat extended until further order; proceedings stood over to Expedition List

CATCHWORDS: REAL PROPERTY - extension of caveat - call option - option defined by reference to plan subsequently varied before Council consent - whether Council consent was consent for purposes of option contract - whether grantor validly terminated option contract - whether caveat should be extended by interlocutory order

CASES CITED: Forder v Cemcorp Pty Ltd (2001) 10 BPR 18,615
Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57
Piper Industries Pty Ltd v Hemphill (unreported, 8 June 1989)
Suttor v Gundowda Proprietary Ltd (1950) 81 CLR 418

PARTIES :
Allam Homes Pty Ltd (P)
Vocata Pty Ltd (D)

FILE NUMBER(S): SC 3743/03

COUNSEL:
J S Drummond (P)
D S Fagan SC (D)

SOLICITORS: Bateman Battersby (P)
Colin Biggers & Paisley (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 15 JULY 2003

3743/03 ALLAM HOMES PTY LTD V VOCATA PTY LTD

JUDGMENT

1 HIS HONOUR: This proceeding began on 10 July 2003, when the plaintiff sought leave to file a statement of claim with abridgement of service, and moved for interim relief in terms of paragraph (5), or in the alternative paragraph (9), of the statement of claim. Paragraph (5) seeks an order that the operation of a certain caveat be extended until further order, and paragraph (9) seeks an order that until the determination of the proceeding or further order, the defendant be restrained from dealing with the land to which the caveat relates. The defendant appeared on the application, to resist the claim for interim orders.

2 The hearing of the application was comparatively lengthy, for a Duty List matter, and I granted leave for further written submissions to be provided to me on 11 July 2003. I was informed that the caveat was due to expire on 11 July. I therefore made an order by consent extending the operation of the caveat until further order, so as to preserve the position of the plaintiff until I could make my decision.

3 At all material times the defendant has been the registered proprietor of approximately 20 acres of land originally known as Lots 14 and 15 Sparks Road, Woongarrah ("the Land"). On 12 April 2002 the plaintiff and the defendant executed a Deed of Put and Call Option ("the Deed"). Under the Deed the defendant agreed to lodge development applications with Wyong Shire Council to permit subdivision of the Land, in the manner set out in Plan A and Plan B attached to the Deed. Plan A was for a subdivision of part of the Land into 27 proposed lots, to be used for the development of display homes. Plan B was for a subdivision of another part of the Land for residential…

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: [2003] NSWSC 628
Decision Date: 15 July 2003

CaseChat Overview and Summary

The dispute in Allam Homes v Vocata involved the property developer, Allam Homes, and the caveator, Vocata. The central issue was whether Allam Homes could terminate an option to purchase a property, which was defined by reference to a plan that was subsequently varied without council consent. Vocata had lodged a caveat on the property to prevent the transfer, claiming that the option to purchase remained valid. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the variation of the plan, which occurred without council consent, affected the validity of the option contract, and if Allam Homes had the right to terminate the contract. Additionally, the court had to determine whether council consent was a condition precedent for the option contract and whether Vocata's caveat should be extended to prevent the transfer of the property. The court also needed to consider whether Allam Homes had validly terminated the option contract and if Vocata's caveat should be extended by interlocutory order.

The court held that council consent was not a condition precedent to the option contract. Consequently, the variation of the plan without council consent did not invalidate the option. Furthermore, the court found that Allam Homes had validly terminated the option contract. As a result, the court ruled that Vocata's caveat should not be extended. Consequently, the interlocutory order sought by Vocata was dismissed.

The final orders of the court were that Allam Homes was entitled to terminate the option contract, and Vocata's caveat was not to be extended. The interlocutory order sought by Vocata was dismissed with costs.

Orders