Alphington Developments Pty Ltd v Amcor Pty Ltd - [2025] VSCA 48

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0022

ALPHINGTON DEVELOPMENTS PTY LTD (ACN 164 529 864)	Applicant
v
AMCOR PTY LTD (ACN 000 017 372)	Respondent

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JUDGES:	WALKER, LYONS and WHELAN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19–20, 22, 25 November 2024
DATE OF REASONS:	27 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 48
JUDGMENT APPEALED FROM:	[2023] VSC 637 (Sloss J)

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CONTRACT – Construction – Contract for sale of land – Purchaser required to undertake remediation works to land – Vendor required to pay costs ‘properly and reasonably incurred’ by purchaser in undertaking works – Purchaser to notify vendor of discovery of unidentified contamination as precursor to recovery of costs – Contract required notice to be accompanied by letter of environmental consultant – Judge found that purported notices and letters were not ‘valid’ – Whether accompanying letters satisfy criteria under the contract – Compliance with contractual requirements to be assessed on the face of the notice and letter – Court satisfied that each notice contained at least one item of unidentified contamination that complied with contractual criteria – Remittal necessary – Application for leave to appeal granted – Appeal allowed.

CONTRACT – Failure of contractual machinery – Contract imposed obligation on vendor to pay costs ‘properly and reasonably incurred’ by purchaser in remediation of contamination – Contract provided machinery for notification of unidentified contamination as precursor to recovery of costs – Vendor could object to notice and objection to be resolved by expert – Contract required notification of unidentified contamination by purchaser and resolution of any objection by expert prior to remediation being undertaken – Contract also provided machinery for certification of works by quantity surveyor prior to payment – Where extensive unidentified contamination discovered – Where parties made informal accommodation to delay expert determination process – Where parties agreed that remediation works would proceed before objections were resolved – Where parties amended contract to refer ‘all disputes’ about unidentified contamination to ‘the Court’ – Whether contractual machinery failed as a result of informal accommodation or amendment to contract – Contractual machinery failed – Contractual machinery not essential – Even if machinery essential, contract has been part-performed – Court can supply alternative machinery – Form of alternative machinery considered – No reason not to exercise discretion to supply alternative machinery – Remittal necessary – Application for leave to appeal granted – Appeal allowed.

CONTRACT – Breach of terms – Implied duty of co-operation, good faith and fair dealing – Contractual obligation to promptly do whatever other party required of it to give effect to contract and perform obligations under contract – Relevant allegations raised at trial for first time in final submissions – Whether defendant accorded procedural fairness – No error by trial judge – Proposed ground of appeal strictly unnecessary to decide – Leave to appeal refused.

QUANTUM MERUIT – Trial judge did not proceed on erroneous view of the law – Trial judge addressed submissions made at trial – Entirely new…

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: [2025] VSCA 48
Decision Date: 27 March 2025

CaseChat Overview and Summary

In the matter of Alphington Developments Pty Ltd v Amcor Pty Ltd, the Court was called upon to resolve disputes arising from a contract for the sale of land, wherein the purchaser was mandated to undertake remediation works due to contamination. The purchaser, Alphington Developments, claimed that the vendor, Amcor, was obliged to reimburse the costs incurred during the remediation process. The contract stipulated that for such reimbursement to be valid, the purchaser had to notify the vendor of any unidentified contamination, accompanied by a letter from an environmental consultant. The primary issue before the Court was whether the notices provided by the purchaser were valid and if they met the criteria outlined in the contract.

The Court found that the notices were not valid as they did not comply with the contractual requirements. Specifically, the notices were not accompanied by the required letters from environmental consultants. However, upon closer examination, the Court determined that each notice contained at least one instance of unidentified contamination that met the contractual criteria, suggesting that the notices were not entirely invalid. Consequently, the Court concluded that a remittal was necessary to allow for a more thorough review of the notices and their compliance with the contract. The application for leave to appeal was granted, and the appeal was allowed.

The Court further addressed the contention that the contractual machinery for resolving disputes over unidentified contamination had failed, either due to an informal agreement between the parties to delay the expert determination process or because the parties had amended the contract to refer all disputes about unidentified contamination to the Court. The Court held that the contractual machinery had indeed failed but that it was not essential for the contract's operation. Even if the machinery was deemed essential, the Court noted that the contract had been partially performed and that it had the discretion to supply alternative machinery. The Court exercised this discretion and found that no specific reason precluded it from doing so, thereby ordering a remittal to allow for a reassessment of the contractual obligations and remedies. The application for leave to appeal was granted, and the appeal was allowed.

Additionally, the Court dismissed an argument regarding a breach of the implied duty of cooperation, good faith, and fair dealing, as well as a quantum meruit claim, finding that these issues were either not properly raised during the trial or did not warrant a remittal. However, the Court did order a remittal due to insufficient findings of fact, leaving open the possibility that the applicant might still establish an entitlement to some amount of reimbursement.

Orders