Arshad Developments P/L v Wardle - [2002] QSC 89

SUPREME COURT OF QUEENSLAND

CITATION:

Arshad Developments P/L v Wardle & Ors [2002] QSC 089

PARTIES:

ARSHAD DEVELOPMENTS PTY LTD
ACN 098 863 097

(applicant)
v

GARY ARNOLD WARDLE, JENNIFER HELEN WARDLE, ALLAN DAVID JOHNSON, STRONGFORCE PTY LTD

ACN 058 187 081
(respondents)

FILE NO/S:

2532 of 2002

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

5 April 2002

DELIVERED AT:

Brisbane

HEARING DATE:

26 April 2002

JUDGE:

Ambrose J

ORDER:

The application is dismissed.

CATCHWORDS:

CONTRACT – CONSTRUCTION AND INTERPRETATION – application for declaration that contract should be specifically performed – where contract for sale of four parcels of land – where 45 day due diligence period – whether vendor had the right to terminate the contract on the due diligence date – whether “by” the due diligence date means “before” or “on or before”

Dockside Holdings Pty Ltd v Rakio Pty Ltd No. SCCIV-99-207 [2001] SASC 78 (5 April 2001), considered
Eastaugh & Ors v MacPherson [1954] 1 WLR 1307, considered
Fitzgerald & Anor v Masters (1956) 95 CLR 420, considered
Westpac Banking Corporation v Tanzone Pty Ltd & Ors [2000] NSW CA 25 (29 February 2000), considered

COUNSEL:

M Gynther for the applicant
D B Fraser QC with A N Stone for the respondents

SOLICITORS:

Corrs Chambers Westgarth for the applicant
Trilby Misso for the respondents

This is an application for a declaration that five parcels of land which the defendants (“the vendor”) agreed to sell to the plaintiff (“the purchaser”) by a contract in writing dated 30 November 2001 ought be specifically performed and for ancillary orders designed to achieve that result. At the time of purchase the land was subject to a town planning permit to develop it for residential purposes.

Under clause 4 of the contract the vendor undertook to provide documentation relating to that town planning permit within three days of the execution of the contract.

Clause 8 of the contract provides as follows –

“8. DUE DILIGENCE
8.1(a) The Purchasers propose to redevelop the property and to construct a Strata Titled Residential complex (development).
(b)The Purchasers may terminate this contract forty-five (45) days of the date of this Contract (“due diligence date”) if any of its enquiries or investigations relating to the development are unsatisfactory or, in the purchasers opinion make the development unprofitable or not commercially viable in the Purchasers absolute discretion.

(c)Without limiting clause 8.1 (b) the purchasers enquiries and investigations may include:
(i)Soil, Engineers and Surveyors enquiries
(ii)Services to the property
(iii)Town Planning and
(iv)Requirements of other Authorities
(v)Any other matters deemed necessary by Purchasers.

8.2The Purchasers may notify the Vendor by the “due diligence date” that either:
(a)Satisfactory results of enquiries and investigation for the development have been obtained.

(b)Satisfactory results have not been obtained and it terminates this Contract or

(c) it waives the benefit of clause 8.1
Any notice can be through the Vendor’s Agent.

8.3If the Vendors do not receive a notice under Clause 8.2 it may terminate this Contract on the due diligence date…

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: [2002] QSC 89
Decision Date: 5 April 2002

CaseChat Overview and Summary

The case of Arshad Developments P/L v Wardle involved a dispute between the plaintiff, a developer, and the defendant, the vendor of four parcels of land. The plaintiff sought a declaration that the contract for sale of the land should be specifically performed. The contract contained a clause allowing the vendor to terminate the contract if the plaintiff had not exercised its option to purchase by the due diligence date, which was specified as 45 days from the contract date. The primary legal issue before the court was the interpretation of the phrase "by the due diligence date," which the plaintiff argued meant "on or before" the due diligence date, whereas the vendor contended it meant "before" the due diligence date. The court was required to determine whether the vendor had the right to terminate the contract on the due diligence date itself.

The court examined the language of the contract and considered the ordinary meaning of the phrase "by the due diligence date." The court found that the phrase "by" typically means "on or before" unless the context clearly indicates otherwise. The court noted that there was no indication in the contract that the phrase should be interpreted as "before." Therefore, the court held that the phrase "by the due diligence date" meant "on or before" the due diligence date. As a result, the vendor did not have the right to terminate the contract on the due diligence date itself. The court dismissed the plaintiff's application for specific performance, as the contract remained valid and enforceable under the correct interpretation.

The orders of the court were that the application for specific performance was dismissed. The court found that the vendor could not terminate the contract on the due diligence date, and thus the contract remained in effect. No further orders were made as to the specific performance of the contract.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Arshad Developments P/L v Wardle & Ors [2002] QSC 089
PARTIES:	ARSHAD DEVELOPMENTS PTY LTD ACN 098 863 097 (applicant) v GARY ARNOLD WARDLE, JENNIFER HELEN WARDLE, ALLAN DAVID JOHNSON, STRONGFORCE PTY LTD ACN 058 187 081 (respondents)
FILE NO/S:	2532 of 2002
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	5 April 2002
DELIVERED AT:	Brisbane
HEARING DATE:	26 April 2002
JUDGE:	Ambrose J
ORDER:	The application is dismissed.
CATCHWORDS:	CONTRACT – CONSTRUCTION AND INTERPRETATION – application for declaration that contract should be specifically performed – where contract for sale of four parcels of land – where 45 day due diligence period – whether vendor had the right to terminate the contract on the due diligence date – whether “by” the due diligence date means “before” or “on or before” Dockside Holdings Pty Ltd v Rakio Pty Ltd No. SCCIV-99-207 [2001] SASC 78 (5 April 2001), considered Eastaugh & Ors v MacPherson [1954] 1 WLR 1307, considered Fitzgerald & Anor v Masters (1956) 95 CLR 420, considered Westpac Banking Corporation v Tanzone Pty Ltd & Ors [2000] NSW CA 25 (29 February 2000), considered
COUNSEL:	M Gynther for the applicant D B Fraser QC with A N Stone for the respondents
SOLICITORS:	Corrs Chambers Westgarth for the applicant Trilby Misso for the respondents