Black v Australand Holdings Pty Ltd [No 2]

Black and others (the appellants) sought to reopen an appeal against Australand Holdings Pty Ltd (the respondent) concerning a dispute over a right of first refusal to purchase units in a proposed new building. The Court of Appeal was asked to consider whether it had erred in deciding the case on a basis that was not a common ground between the parties.

The primary legal issues before the Court of Appeal were whether the appellants' letters constituted an effective nomination of units as contemplated by the contract, whether the respondent was estopped from asserting its contractual rights or had waived them, and whether the Court of Appeal had the power to entertain an argument on which the case was decided, particularly a new ground of appeal not argued at first instance. The appellants also sought to reopen the appeal based on additional evidence relating to a Trade Practices case and alleged defective discovery.

The Court of Appeal reasoned that the appellants' letters did not amount to an effective nomination under the contract. It found no basis for estoppel or waiver binding the respondent. Regarding the Court's power to decide on a basis not argued at first instance, the Court affirmed its ability to do so, provided the parties had a sufficient opportunity to address the issue. Leave to reopen the appeal on the common ground point was refused. Further, leave to reopen based on additional evidence concerning the Trade Practices case was denied, as was leave to reconsider the rejection of the Trade Practices case due to alleged defective discovery. The Court also refused the appeal concerning costs.

Consequently, the application to reopen the appeal was dismissed with costs.