C G Maloney Pty Ltd v Noon - [2011] NSWSC 242

Supreme Court

New South Wales

Medium Neutral Citation: C G Maloney Pty Ltd v Noon [2011] NSWSC 242
Hearing dates: 22-23 February 2011
Decision date: 25 March 2011
Before: Rein J
Decision:
Proceedings dismissed

Catchwords: CONTRACTS - contract of sale of property which includes a buyback option - construction of contract - whether as a matter of construction the buyback option to a third party was a promise made to the plaintiff - whether the plaintiff can enforce a promise for the benefit of a third party - absence of mutuality
ESTOPPEL - Anshun estoppel - whether the plaintiff is precluded from bringing its claim - whether it was unreasonable for the plaintiff not to have pursued its current claim in previous proceedings
ASSIGNMENT - assignment of contractual rights - whether the plaintiff has standing to bring its claim - whether the plaintiff has assigned all of its rights to a third party who is not a party to these proceedings - whether the subject matter of the assignment is capable of being assigned at all - whether the notice given to the defendants was effective
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Attorney-General (NT) v Maurice [1986] HCA 80; (1986) 161 CLR 475
Benecke v National Australia Bank (1993) 35 NSWLR 110
Beswick v Beswick [1968] AC 58
Bondi Beach Astra Retirement Village Pty Ltd v Gora [2010] NSWSC 81
Bondi Beach Astra Retirement Village Pty Ltd v Noon [2009] NSWSC 461
Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386
Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245
Consolidated Trust Co Ltd v Naylor (1936) 55 CLR 423
Coulls v Bagot's Executor & Trustee Co Ltd (1967) 119 CLR 460
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Glegg v Bromley [1912] 3 KB 474
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
Johnson v Gore Wood & Co [2002] 2 AC 1
Noon v Bondi Beach Astra Retirement Village Pty Ltd [2010] NSWCA 202
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Prosser v Edmonds (1835) 160 ER 196
Saffron Walden Second Benefit Buildings Society v Rayner (1880) 14 Ch.D. 406
Texts Cited: I C F Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 6th ed (2001), Law Book Co
R Meagher, D Heydon & M Leeming, Meagher, Gummow & Lehane's Equity Doctrines & Remedies, 4th ed (2002), LexisNexis Butterworths
Category: Principal judgment
Parties: C G Maloney Pty Ltd CAN 000 449 374 (plaintiff)
Gregory Brian Noon (first defendant)
Matthew Jack Noon (second defendant)
Representation: Counsel:
B Coles QC; B DeBuse (plaintiff)
A S Bell SC (defendants)
Solicitors:
McCooe Raves & Poole (plaintiff)
Gilbert + Tobin (defendants)

File Number(s): SC 2010/423568

Judgment

The plaintiff, C G Maloney Pty Ltd ( "CGM" ) was the developer of…

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: [2011] NSWSC 242
Decision Date: 25 March 2011

CaseChat Overview and Summary

The case of C G Maloney Pty Ltd v Noon involved a dispute regarding a contract of sale of property that included a buyback option. The plaintiff, C G Maloney Pty Ltd, sought to enforce the buyback option, which was intended to be exercisable by a third party. The defendants, Noon, contested the validity and enforceability of the option, arguing that the plaintiff could not enforce a promise for the benefit of a third party due to the absence of mutuality. Additionally, the defendants raised issues of Anshun estoppel, arguing that the plaintiff was precluded from bringing its claim as it was unreasonable for the plaintiff not to have pursued it in previous proceedings. The defendants also questioned whether the plaintiff had standing to bring the claim, given that it appeared to have assigned all of its rights to a third party, and whether the notice given to the defendants was effective.

The primary legal issues for the court to decide were whether the buyback option in the contract could be enforced by the plaintiff for the benefit of a third party, and whether the plaintiff was estopped from pursuing its claim due to the absence of mutuality and the previous proceedings. The court needed to determine if the plaintiff could enforce the promise made to the third party and whether the plaintiff was precluded from bringing the current claim due to unreasonableness in not pursuing it earlier. Additionally, the court had to consider whether the plaintiff had assigned all of its rights to a third party and if the assignment was effective.

In its reasoning, the court found that the buyback option in the contract was intended to be a promise made to the plaintiff for the benefit of a third party. However, due to the absence of mutuality, the plaintiff could not enforce the promise on behalf of the third party. The court further held that the plaintiff was not estopped from bringing its claim, as it was not unreasonable for the plaintiff not to have pursued its current claim in the previous proceedings. The court also found that the plaintiff had not assigned all of its rights to a third party, and even if it had, the assignment would not have been effective as the subject matter of the assignment was not capable of being assigned. Consequently, the plaintiff was held to have standing to bring the claim.

The court's final orders were that the plaintiff was not entitled to enforce the buyback option for the benefit of a third party, and the plaintiff's claim was not precluded by Anshun estoppel. The court further ruled that the plaintiff had standing to bring the claim, and the assignment of rights to a third party was ineffective.

Orders