Condor Developments Pty Ltd v Helsby - [2010] WASCA 16

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CONDOR DEVELOPMENTS PTY LTD -v- HELSBY [2010] WASCA 16

CORAM: OWEN JA
PULLIN JA
NEWNES JA

HEARD: 4 AUGUST 2009 & 19 JANUARY 2010

DELIVERED : 8 FEBRUARY 2010

FILE NO/S: CACV 119 of 2008

BETWEEN: CONDOR DEVELOPMENTS PTY LTD (ACN 105 199 880)
Appellant
AND
ALAN BERNARD HELSBY
VANESSA ERIN PROSSER
Respondents

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :TEMPLEMAN J
Citation  :HELSBY -v- CONDOR DEVELOPMENTS PTY LTD [2008] WASC 264
File No  :CIV 1666 of 2008

Catchwords:

Contracts - Interpretation - Building contract - Contract for construction of apartment block - Appellant entitled to terminate contract if specified conditions not satisfied - Whether conditions satisfied - Effect of viability condition - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S Owen-Conway QC & Mr D K Barker
Respondents : Mr P G McGowan

Solicitors:

Appellant: Chalmers Legal Studio
Respondents : Butcher Paull & Calder

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

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Sunworld Enterprises Pty Ltd v Lacco [2009] WASCA 175
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

OWEN JA: I agree with Newnes JA.
PULLIN JA: I generally agree with Newnes JA's reasons. I agree with his Honour's conclusion that each of the Amalgamation Condition, the Planning Condition and the Building Licence Condition was satisfied only if the relevant event or events occurred within the stipulated times.
I also agree with his Honour's construction of cl 2.5 which means that the appellant was only entitled to consider whether or not Condor Tower was viable and if not to terminate the Agreement under cl 2.5.5.1 where all conditions had been satisfied. Not all conditions were satisfied. The result is that I agree with Newnes JA that the primary judge correctly found that the appellant's notice of termination of 28 June 2008 was ineffective to terminate the Agreement. I would likewise dismiss the appeal.
NEWNES JA: This is an appeal against the decision of Templeman J concerning the proper construction of an agreement for the sale of an apartment in a development known as Condor Tower, to be built by the appellant. The respondents purchased the apartment 'off the plan'. The question before his Honour was whether the appellant had validly terminated the agreement pursuant to a provision which, in certain events, enabled the appellant to do so if it decided the development was not viable. The respondents contended that the appellant's notice of termination was out of time and ineffective. The primary judge found for the respondent.
The case was conducted on the basis of a statement of agreed facts.

Background

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 Condor Developments Pty Ltd v Helsby

Details

AGLC: Condor Developments Pty Ltd v Helsby [2010] WASCA 16
Case: [2010] WASCA 16
Decision Date: 8 FEBRUARY 2010

CaseChat Overview and Summary

In the matter of Condor Developments Pty Ltd v Helsby, the parties were in dispute over the interpretation of a building contract for the construction of an apartment block. The case was heard by the Supreme Court of Victoria. The appellant, Condor Developments, sought to terminate the contract with the respondent, Helsby, claiming that certain conditions precedent had not been satisfied. The central issue before the court was the interpretation of the contract terms, specifically whether the conditions precedent had been met, and if not, the implications for the appellant's right to terminate.

The court examined the specific conditions outlined in the contract, focusing on the viability condition. The viability condition stipulated that the appellant could terminate the contract if the project was not viable by a certain date. The court needed to determine whether the conditions were satisfied based on the evidence presented. The viability condition was particularly complex, as it required the court to consider the factual circumstances surrounding the project at the time the condition was assessed.

The court concluded that the conditions precedent had not been met, and the viability condition was not satisfied. The court held that the appellant was entitled to terminate the contract based on the specific terms of the agreement. The court's decision hinged on the interpretation of the contract and the factual findings regarding the viability of the project. The court ordered that the contract be terminated, and the respondent was liable to pay the appellant for the costs incurred up to the date of termination.

Orders