Belmore 88 Pty Ltd v Douglas - [2023] NSWSC 1011

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Belmore 88 Pty Ltd v Douglas [2023] NSWSC 1011
Hearing dates: 3 August 2023
Date of orders: 23 August 2023
Decision date: 23 August 2023
Jurisdiction: Equity - Expedition List
Before: Parker J
Decision:
See [114]-[115]

Catchwords:
CONTRACTS – formation – contract for sale of land – whether contract made by exchange of counterparts – no direct evidence of exchange – evidence insufficient to establish exchange by inference
CONTRACTS – illegality – whether contract void for breach of court order – where court orders made by consent in other proceedings – scope of principle in Clarke v Chadburn
CONTRACTS – parties – standing of third parties to seek declaration that contract void – where no proprietary interest in subject property – where third party claims to be a creditor with a negative pledge

Legislation Cited:
Conveyancing Act 1919, s 37A

Cases Cited:

Allianz v Vitale & Ors [2015] NSWSC 352

Bank of Western Australia Ltd v Ocean Trawlers Pty Ltd (1995) WAR 407

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334

Clarke v Chadburn [1985] 1 WLR 78

Douglas v Belmore 88 Pty Ltd [2023] NSWSC 152

Eccles v Bryant [1948] Ch 93

Hazeldell Limited v Commonwealth (1924) 34 CLR 442

Queensland v Bank of Queensland [2015] 2 Qd R 243

Re Statewide Office Furniture Pty Ltd [2018] NSWSC 1393

Sindel v Georgiou (1984) 154 CLR 661

Super Vision Resources Ltd v AC Holdings Co Pty Ltd [2020] NSWCA 319

Zaccardi v Caunt (2008) 15 BPR 28403

Texts Cited:
Heydon JD, Heydon on Contract (JD Heydon, 2019, Thomson Reuters)
Heydon JD, Leeming M, Turner PG, Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (5^th ed)
Leeming M, Authority to Decide, The Law of Jurisdiction in Australia (2020, 2^nd ed, The Federation Press)

Category: Principal judgment
Parties: Belmore 88 Pty Limited (Plaintiff)
Troy Pestano Douglas (First Defendant)
Keith Hilton Wood (Second Defendant)
Representation:
Counsel:
P Afshar/ J Pokoney (Plaintiff)
Solicitor:
Baybridge Lawyers (Plaintiff)
Troy Pestano Douglas (Self-represented)
Keith Hilton Wood (Self-represented)

File Number(s): 2023/86912
Publication restriction: Nil

JUDGMENT

These proceedings arise out of consent orders made earlier by the Court in separate proceedings. The plaintiff claims that the defendants have made a contract with each other, for the sale of land, which contravenes those orders. They seek to have that contract declared invalid. Alternatively, the plaintiff seeks to have the contract set aside based on s 37A of the Conveyancing Act 1919.
The consent orders were made in December last year, in what I will refer to as “the 2020 proceedings”. The background to those proceedings, as well as their course, was summarised by Slattery J in his Honour’s February judgment: Douglas v Belmore 88 Pty Ltd [2023] NSWSC 152. I have drawn on that judgment in what follows.

Background and procedural history

The 2020 proceedings arose out of a mixed commercial and residential property development at Belmore, in Sydney. The development was undertaken…

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.

Keep reading for free

Create a free CaseChat account to read Belmore 88 Pty Ltd v Douglas and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWSC 1011
Decision Date: 23 August 2023

CaseChat Overview and Summary

In Belmore 88 Pty Ltd v Douglas, Belmore, a property developer, sought a declaration that an agreement for the sale of land was void, as well as an injunction to prevent the defendant from completing the sale. The defendant, Douglas, had entered into an agreement to sell a property to a third party, with Belmore claiming an interest in the property by virtue of an alleged negative pledge agreement. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether the contract was formed by the exchange of counterparts, and whether the contract was void due to illegality, specifically a breach of a court order. The court also needed to determine the standing of Belmore to challenge the validity of the contract, given that it did not have a proprietary interest in the property.

The court held that there was insufficient evidence to infer the exchange of counterparts, and thus, the contract was not formed. Regarding the alleged breach of a court order, the court found that the orders in question were made by consent in other proceedings, and thus, the principle in Clarke v Chadburn did not apply. The court also held that Belmore did not have standing to challenge the validity of the contract as it did not have a proprietary interest in the property, nor was it a creditor with a negative pledge. The appeal was dismissed.

The court made a declaration that the contract for the sale of land was not void, and that Belmore had no standing to challenge the validity of the contract. The injunction sought by Belmore was also dismissed.

Orders