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Carbone v Mills

Carbone v Mills

Case [2018] NSWSC 496 24 April 2018

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Supreme Court

New South Wales

Medium Neutral Citation: Carbone v Mills [2018] NSWSC 496
Hearing dates: 19, 20 and 21 March 2018
Date of orders: 24 April 2018
Decision date: 24 April 2018
Jurisdiction: Equity
Before: Darke J
Decision:
Call option granted by the defendant to the plaintiffs has not been validly exercised.

Catchwords:
LAND LAW – conveyancing – options – whether written call option agreement contains oral terms – construction of call option agreement – whether agreement subsequently varied – writing requirements

EQUITY – remedies – rectification – whether parties had common intention as to duration of call option – whether intention not reflected in call option agreement due to common mistake
EQUITY – remedies – estoppel – whether representations made as to duration of call option – whether parties conducted their relationship on basis of an assumption as to duration of call option
Legislation Cited: Conveyancing Act 1919 (NSW), ss 23C, 54A, 128, 133C, 133E
Uniform Civil Procedure Rules 2005 r 14.14
Cases Cited: Adicho v Dankeith Homes Pty Ltd [2012] NSWCA 316
Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570
Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd [2017] NSWCA 99
Baloglow v Konstantinidis [2001] NSWCA 451
Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Limited (2014) 251 CLR 640; [2014] HCA 7
Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68
Khoury v Khouri (2006) 66 NSWLR 241; [2006] NSWCA 184
Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57
Lennon v Scarlett & Co (1921) 29 CLR 499
Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184
Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234
McBride v Sandland (1918) 25 CLR 69
Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221
Radaich v Smith (1959) 101 CLR 209
Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65
Schwartz v Hadid [2013] NSWCA 89
Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47
Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93
Watson v Foxman (1995) 49 NSWLR 315
Category: Principal judgment
Parties: Salvatore Carbone (First Plaintiff)
Nataliya Carbone (Second Plaintiff)
Charles Mills (Defendant)
Representation:
Counsel:
Ms S Fendekian with Mr A Edington (Plaintiffs)
Mr P Braham SC with Mr D Neggo (Defendant)
Solicitors:
Doyle Wilson (Plaintiffs)
Hicksons (Defendant)

File Number(s): 2016/382974
Publication restriction: None

Judgment

Introduction

These proceedings concern an Option Agreement entered…

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.

Continue reading Carbone v Mills

Details

AGLC: Carbone v Mills [2018] NSWSC 496
Case: [2018] NSWSC 496
Decision Date: 24 April 2018

CaseChat Overview and Summary

Carbone v Mills was a case heard by the Supreme Court of South Australia. The dispute between the parties centred around the interpretation and variation of a written call option agreement. The agreement pertained to a property, where the vendor had granted the purchaser an option to buy the property under certain conditions. The purchaser, Mills, sought to exercise the call option but the vendor, Carbone, refused to proceed unless the purchaser agreed to certain conditions not stipulated in the original agreement. Mills sought a declaration that the call option agreement had been varied and that it included certain oral terms. Mills also sought an order of rectification on the basis that the written agreement did not reflect the parties' common intention as to the duration of the call option due to a common mistake. Additionally, Mills sought an estoppel preventing Carbone from asserting the terms of the written agreement on the basis that representations had been made as to the duration of the call option and the parties had conducted their relationship on that assumption.

The court was required to determine whether the written call option agreement contained any oral terms, and if so, whether those terms were binding on the parties. The court also had to decide whether the call option agreement had been varied and if the variation was valid. The court had to examine whether the parties had a common intention as to the duration of the call option and whether that intention was not reflected in the written agreement due to a common mistake. Finally, the court had to consider whether Mills was entitled to an estoppel preventing Carbone from asserting the terms of the written agreement on the basis of representations made as to the duration of the call option.

The court held that the written call option agreement did not contain any oral terms and that any alleged variations were not binding on the parties. The court found that there was no common mistake as to the duration of the call option and that the written agreement accurately reflected the parties' intentions. The court also held that Mills was not entitled to an estoppel as there had been no representations made as to the duration of the call option and the parties had not conducted their relationship on the basis of any such assumption. The court dismissed Mills' claims and held that the written call option agreement was valid and enforceable.

The court made orders dismissing Mills' claims and awarding costs to Carbone. Mills was ordered to pay Carbone's costs of the proceedings on an indemnity basis. The court did not make any orders for rectification or estoppel as it found that Mills was not entitled to those remedies. The written call option agreement remained in force and effect.

Orders