Coplin v Al Maha Pty Ltd

[2019] NSWCA 159

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Coplin v Al Maha Pty Ltd [2019] NSWCA 159
Hearing dates:	7 May 2019
Date of orders:	02 July 2019
Decision date:	02 July 2019
Before:	Macfarlan JA at [1], Leeming JA at [2], Payne JA at [3]
Decision:	(1)   Notice of motion seeking leave to amend the notice of appeal dated 3 May 2019 dismissed. (2)   Appeal dismissed. (3)   Appellant to pay the respondents’ costs as agreed or assessed.
Catchwords:	LAND LAW – conveyancing – options – call options – construction – notice of exercise of option able to be given to grantor’s conveyancer – whether option validly exercised - whether notice to grantee required that conveyancer no longer retained by grantor – whether requirement that conveyancer be retained at the time of the exercise of the option
Legislation Cited:	Contracts Review Act 1980 (NSW), s 7 Conveyancing Act 1919 (NSW), s 170(1)(b) Uniform Procedure Rules 2005 (NSW), r 14.11
Cases Cited:	Austra Tanks Pty Ltd v Running [1982] 2 NSWLR 840 Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36 Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1998] HCA 16 Comdox v Robins [2009] NSWSC 367 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Hagerty v Hills Central Pty Ltd [2018] NSWCA 200 HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342 Josland v Mullaley Properties Pty Ltd (1993) 6 BPR 13,285 Ma v Adams [2015] NSWSC 1452 Meehan v Jones (1982) 149 CLR 571; [1982] HCA 52 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631 Pratt & Anor v Hawkins (No 2) (1991) NSW ConvR 55-592 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Tonitto v Bassal (1992) 28 NSWLR 564 Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429; [1968] HCA 8 Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598
Texts Cited:	JD Heydon QC, Heydon on Contract (Thomson Reuters, 2019)
Category:	Principal judgment
Parties:	Iraklis Gary Coplin (Appellant) Al Maha Pty Ltd (ACN 118 230 087) (First Respondent) Sophia Norma Bechara (Second Respondent)
Representation:	Counsel: P Gray SC, B Oliak (Appellant) T M Faulkner SC, A F Garsia (Respondents)   Solicitors: De Pasquale Lawyers (Appellant) HWL Ebsworth Lawyers (Respondents)
File Number(s):	2018/00356638
Publication restriction:	None
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity – Real Property List Citation: [2018] NSWSC 1623 Date of Decision: 24 October 2018 Before: Kunc J File Number(s): 2018/00039242

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant (as grantor) and the first respondent (as grantee) entered into a deed styled “The Put and Call Option Agreement” (“Option Deed”) in relation to a property in St Leonards. Annexure E to the Option Deed was a draft contract for sale. The Option Deed provided that the first respondent could exercise the option by giving notice to the appellant’s “solicitor/conveyancer”. The appellant’s “solicitor/conveyancer” was recorded as “V.J Tait & Associates” in the draft contract. At some point after the Option Deed was signed, the appellant ceased to retain VJ Tait & Associates. No notice of that matter was given to the first respondent. The first respondent purported to exercise the option by delivering to VJ Tait & Associates a notice of exercise of the call option, a notice nominating the second respondent as purchaser, and a cheque for the balance of the deposit.

The respondents sought specific performance and declarations that the option had been validly exercised and that there was an enforceable contract between the appellant and the second respondent as the first respondent’s nominee. The primary judge made those declarations and granted specific performance to the respondents: Al Maha Pty Limited v Coplin [2018] NSWSC 1623.

The issues on appeal were: (i) whether the first respondent validly exercised the option; (ii) uncertainty, payment of the deposit, and validity of the resulting contract; (iii) validity of the purported termination of the resulting contract; (iv) whether specific performance should have been ordered; and (v) whether notice was given of a change in “solicitor/conveyancer”.

The Court, dismissing the appeal, held:

(i) The text of the Option Deed objectively revealed an intention that the terms of the draft contract would be considered when construing the terms of the Option Deed. VJ Tait & Associates was the “solicitor/conveyancer” under the Option Deed. The option was validly exercised: [86].

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37; Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36; HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342; Hagerty v Hills Central Pty Ltd [2018] NSWCA 200 applied. Pratt & Anor v Hawkins (No 2) (1991) NSW ConvR 55-592 distinguished.

(ii) The Option Deed is capable of definite meaning and is not void for uncertainty. The deposit was paid as required by the Option Deed. Since the call option was validly exercised, a valid and enforceable contract was in effect: [103], [111], [118].

Austra Tanks Pty Ltd v Running [1982] 2 NSWLR 840; Meehan v Jones (1982) 149 CLR 571; [1982] HCA 52; Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429; [1968] HCA 8 applied. Ma v Adams [2015] NSWSC 1452; Josland v Mullaley Properties Pty Ltd (1993) 6 BPR 13,285 distinguished.

(iii) The appellant did not have the right to terminate the contract for sale since the deposit was paid as required: [125].

(iv) The primary judge did not err in ordering specific performance. It could be inferred from the totality of the material before his Honour that the second respondent was ready, willing and able to perform her contractual obligations: [138].

Bahr v Nicolay (No 2) (1988) 164 CLR 604; [1998] HCA 16 applied.

(v) The appellant was precluded from advancing for the first time on appeal an argument that notice was given of a change in “solicitor/conveyancer” since the issue could realistically have been met by the respondents calling evidence and conducting their case differently at the trial: [152]-[153].

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35; Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33; Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598; Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631 applied.

Judgment

1. MACFARLAN JA: I agree with Payne JA.

2. LEEMING JA: I agree with Payne JA.

3. PAYNE JA: On 16 October 2014, the first respondent, Al Maha Pty Ltd, as grantee and the appellant, Mr Coplin, as grantor entered into a deed styled “The Put and Call Option Agreement” (“Option Deed”) in relation to a property in St Leonards. Annexure E to the Option Deed was a draft contract for sale of land in the form of the 2005 edition of the standard form, which was subject to a number of special conditions.

4. The Option Deed provided that the first respondent could exercise the option by giving the requisite notice to the appellant’s “solicitor/conveyancer”. Clause 28(a) of the Option Deed contains a reference to the term “solicitor/conveyancer” without defining that term:

“28.   Notices

(a)    All notices or documents required or permitted to be given by one party to another under this deed must be in writing, addressed to the other party or their solicitor/conveyancer, and:

(i)    delivered to that party’s address or their solicitor’s/conveyancer’s; or

(ii)    delivered to a party’s solicitor’s/conveyancer’s DX; or

(iii)    transmitted by facsimile transmission to that party’s address or their solicitor’s/conveyancer.”

5. The term “solicitor”, however, was defined in the draft contract for sale of land which was annexed to the Option Deed as follows:

“1   Definitions (a term in italics is a defined term)

In this contract, these terms (in any form) mean –

…

solicitor in relation to a party, [means] the party’s solicitor or licensed conveyancer named in this contract or in a notice served by the party”

6. The appellant’s “solicitor/conveyancer”, as recorded in the draft contract for sale of land annexed to the Option Deed, was “V.J Tait & Associates”, in particular, Ms Tait of VJ Tait & Associates. Ms Tait was the appellant’s licensed conveyancer for the purposes of the preparation and execution of the Option Deed.

7. On 14 May 2015, the appellant commenced proceedings against the first respondent in the Supreme Court seeking to set aside the Option Deed on a number of grounds. Mr Berman of E Berman & Co was the appellant’s solicitor for the purposes of those proceedings.

8. On 12 April 2016, in order to avoid the option expiring according to its terms before the proceedings were resolved, the appellant and the first respondent entered into a Deed of Variation of the Option Deed (“Deed of Variation”) to extend the option exercise period to a date that was 30 calendar days after judgment being handed down in the proceedings and any appeal therefrom.

9. On 16 December 2016, Lindsay J in the Equity Division declared the Option Deed invalid under s 7 of the Contracts Review Act1980 (NSW): Coplin v Al Maha Pty Ltd [2016] NSWSC 1745. On 11 December 2017, this Court allowed an appeal from that decision and set aside Lindsay J’s orders: Al Maha Pty Ltd v Coplin [2017] NSWCA 318.

10. On 18 December 2017 at 10.57am, the respondents’ solicitors emailed Mr Berman:

“I am acting for the purchaser with respect to the exercise of option and the conveyance of the property named above.

The option and contract name V J Tait and Associates as the conveyancers on record for the vendor Mr Coplin.

I understand that you acted for Mr Coplin solely in relation to the litigation. We have not received any notification from V J Tait and Associates that they cease to Act for Mr Coplin and in our view they continue to act on that basis.

Accordingly, unless we receive from you prior to 12.00pm on Tuesday 19 December 2017, written confirmation that:

1. you act for Mr Coplin in relation to the sale of the property (in addition to the litigation); and

2. you will accept service on that basis,

we will serve the exercise of option documents (including the contract) to, and draw the cheque for the deposit in favour of, V J Tait and Associates, in accordance with the option.”

11. On 18 December 2017 at 1.43pm, the respondents’ solicitors emailed Ms Tait stating that they intended to exercise the option granted by the Option Deed on 21 December 2017.

12. On 19 December 2017 at 11.51am, Mr Berman replied to the respondents’ solicitors:

“We refer to your email of yesterday.

We do not have instructions to accept service.

We deny your client has any right to serve Notice of option documents.

A further letter will follow later today.”

13. On 19 December 2017 at 11.59am, Ms Tait replied to the respondents’ solicitors:

“Further to your email yesterday, we advise that we are no longer acting and have no instructions to accept service of any documents in this matter.”

14. On 21 December 2017 at 9.14am, the first respondent purported to exercise the option by delivering to Ms Tait a notice of exercise of the call option, a notice nominating the second respondent, Ms Bechara, as purchaser, a contract dated 21 December 2017 signed by Ms Bechara as nominee, and a cheque payable to Ms Tait, being payment of the balance of the deposit.

15. On 21 December 2017 at 10.18am, Ms Tait emailed the respondents’ solicitors:

“Further to my email below, advising you on Tuesday 19th December, 2017, we advised that we are no longer acting and have no instructions to accept service of any documents.

I note that you had delivered to my office this morning correspondence dated 21st December, 2017 which has attached to it Notice of Exercise, Notice, Contract and cheque.

We do not accept service of same. We will be returning to you via express post tonight.

The Vendor [the appellant] has withdrawn instructions from us some time ago.”

16. On that same day, Ms Tait returned the documents to the respondents’ solicitors.

17. On 22 December 2017, the respondents’ solicitors sent a letter to Mr Berman stating:

“As you may be aware, our client exercised the call option in the Put and Call Option Agreement dated 16 October 2014 (as varied by the Deed of Variation dated 13 April 2016) (Option) yesterday in accordance with the terms of the Option. Should the contract which has now ensued not be performed, our client will seek specific performance and costs on an indemnity basis.”

18. On 10 January 2018 at 4.00pm, the option granted by the Option Deed (as extended by the deed of Variation) expired.

19. On 6 February 2018, the respondents commenced proceedings in the Equity Division seeking declarations that the option granted by the Option Deed had been validly exercised and that there was a binding and enforceable contract between the appellant and the second respondent, as the lawful nominee of the first respondent, for the sale of the property in St Leonards. Consequent orders for specific performance were also sought.

20. On 24 October 2018, Kunc J made declarations and granted specific performance to the respondents: Al Maha Pty Limited v Coplin [2018] NSWSC 1623. On 6 December 2018, his Honour granted a stay of those orders pending determination of an appeal to this Court.

Relevant provisions

The Option Deed

21. The Option Deed was dated 16 October 2014 and entered between Mr Coplin (referred to as the “Grantor”) and Al Maha Pty Limited (referred to as the Grantee”).

“Parties   Iraklis Gary Coplin

of XXXX, St Leonards, New South Wales

(Grantor)

Al Maha Pty Limited

ABN 71 118 230 087 of XXXX,

Strathfield, New South Wales

(Grantee)”

22. Clause 1 sets out, relevantly, the following definitions and interpretation clauses:

“1.   Definitions and interpretation clauses

1.1   Definitions

In this deed:

…

Call Option means the option granted by the Grantor to the Grantee pursuant to clause 2.

Call Option Exercise Period means the period beginning at 9.00 am on the 43rd day after the date of this deed and ending at 4.00 pm on the date that is 18 calendar months after.

…

Contract means the contract for sale of the Property attached to this deed at Annexure E.

…

Deposit means the deposit payable by the Grantee (as purchaser) under the Contract.

…

Depositholder means the Depositholder under the Contract.

…

Notice of Exercise of Call Option means a notice in the form of or substantially to the effect of Annexure A.

…

Property has the same meaning as in the Contract.

…

Put Option Exercise Period means the period commencing at 9.00 am on the day after 18 calendar months from the date of this deed being the expiry of the Call Option Period and ending at 4.00 pm on the date that is seven business days later.

…

Sale Price means the purchase price shown on the front page of the Contract, namely $2,200,000.00.

…

Security Amount means the amount paid in accordance with clause 8, to secure performance of the Grantee’s obligations under this deed and to an extent the Contract.”

1.2    Interpretation

(a)    In this deed unless a contrary intention is expressed:

…

(vii) a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, this deed and a reference to this deed includes any clause, annexure, exhibit and schedule;”

23. Clause 2 states:

“2.   Grant of Call Option

In consideration of the Grantee paying the Call Option Fee to the Grantor (receipt of which the Grantor acknowledges) the Grantor grants to the Grantee and the Grantee accepts an option to purchase the Property on the terms and conditions contained in the Contract.”

24. Clause 3 states:

“3.    Exercise of Call Option

3.1    Call Option Exercise Period

The Grantee may exercise the Call Option at any time during the Call Option Exercise Period. The Grantee is not entitled to exercise the Call Option after the Call Option Exercise Period.

3.2    Conditions of exercise of Call Option

If the Grantee wishes to exercise the Call Option it must during the Call Option Exercise Period:

(a)   give to the Grantor the Notice of Exercise of Call Option signed by the Grantee and dated the same date that the Call Option is exercised;

(b)   give to the Grantor one copy of the Contract signed by the Grantee and dated the same date as the Notice of Exercise of Call Option; and

(c) pay the Deposit in accordance with the Contract.”

25. Clause 4 states:

“4.   Grant of Put Option

In consideration of the Grantor paying the Put Option Fee to the Grantee (receipt of which the Grantee acknowledges) the Grantee grants to the Grantor and the Grantor accepts an option to require the Grantee to purchase the Property on the terms and conditions contained in the Contract.”

26. Clause 6 states:

“6.    Exchange of Contracts

(a) At the time of exercise of either Option the Grantor and the Grantee are deemed to have entered into a contract for sale of land for the sale of the Property on the same terms and conditions as those set out in the Contract and will immediately exchange copies of the Contract properly signed by each party.

(b) Failure to exchange the Contracts will not affect the validity of this deed [it was common ground “this deed” should be read as “the Contract”] created by the exercise of either Option and the Contract is deemed to have been exchanged at the time and on the date that either Option is exercised.

(c) For the avoidance of doubt, the parties agree that unless and until either Option is exercised, there is no agreement between the Grantor and Grantee for the sale of the Property or any interest in it.”

27. Clause 8 states:

“8.    Security Amount

8.1    Security Amount

The Grantee must pay the Security Amount as set out in this clause 8 to secure performance of its obligations in this deed and to an extent the contract.

8.2    First tranche

(a)    The Grantee must pay to the Depositholder the First Tranche on the date of this deed.

(b)    The First Tranche is released to the Grantor on the date of this deed and is not refundable by the Grantor to the Grantee.

8.3    Second tranche

(a)    The Grantee must pay to the Depositholder the Second Tranche on or before the date which is 12 calendar months from the date of this deed.

(b)    The Second Tranche is released to the Grantor on the date of this deed [it was common ground “this deed” should be read as “payment”] and is not refundable by the Grantor to the Grantee.

8.4    Acknowledgement re composition of Security Amount

For the avoidance of any doubt, the parties agree the Security Amount comprises the aggregate of the First Tranche and the Second Tranche.

8.5    Application of Security Amount

If the Grantor and Grantee enter into a Contract as contemplated by this deed, the Security Amount will become part of the Deposit payable under the Contract.”

28. Clause 11(a) states:

“11.    Nomination

(a)    The Grantee may, by notice in writing to the Grantor given at the same time as the exercise of the Call Option, nominate the Nominee who will replace the Grantee as the purchaser under the Contract.”

29. Clause 28 states:

“28.    Notices

(a)    All notices or documents required or permitted to be given by one party to another under this deed must be in writing, addressed to the other party or their solicitor/conveyancer; and:

(i)   delivered to that party’s address or their solicitor’s/conveyancer’s; or

(ii)    delivered to a party’s solicitor’s/conveyancer’s DX; or

(iii) transmitted by facsimile transmission to that party’s address or their solicitor’s/conveyancer.

(b)    A notice given to a party under clause (a) above is treated as having been given and received:

(i)   if delivered to a party’s address or their solicitor’s/conveyancer on the day of delivery if a Business Day, otherwise on the next Business Day; and

(ii)   if delivered to a party’s solicitor’s/conveyancer by DX, on the second Business Day after the delivery to the document exchange servicing that solicitors/conveyancers DX, if a Business Day, otherwise on second Business Day after the next Business Day; and

(iii)   if transmitted by facsimile to a party’s facsimile number or their solicitor’s/conveyancer’s and a correct and complete transmission report is received, on the day of transmission if a Business Day, otherwise on the next Business Day.”

Draft contract for the sale of land

30. Annexure E to the Option Deed was a draft contract for sale of land in the form of the 2005 edition of the standard form, which was subject to a number of special conditions. The first page of the draft contract set out the following terms:

“TERM	MEANING OF TERM
Vendor’s Agent	Without the intervention of an agent
Co-agent	Not applicable
Vendor	IRAKLIS GARY COPLIN XXXX, St Leonards NSW 2065
Vendor’s Solicitor/ Conveyancer	V.J Tait & Associates Licenced Conveyancers XXXX, West Pennant Hills NSW 2125	Phone (02) XXXX XXXX Fax (02) XXXX XXXX Ref XXX
…
Purchaser’s Solicitor/ Conveyancer	HWL Ebsworth Lawyers XXXX, Sydney NSW 2000 DX XXX Sydney	Phone (02) XXXX XXXX Fax 1300 XXX XXX Ref XXX
Price	$ 2,200,000.00
Deposit	$ 220, 000.00	(10% of the price, unless otherwise stated)
Balance	$ 1,980,000.00”

31. Clause 1 set out, relevantly, the following defined terms:

“1   Definitions (a term in italics is a defined term)

In this contract, these terms (in any form) mean –

…

cheque     a cheque that is not postdated or stale;

depositholder    vendor’s agent (or if no vendor’s agent is named in this contract, the vendor’s solicitor);

…

party        each of the vendor and the purchaser;

…

serve        serve in writing on the other party;

…

solicitor    in relation to a party, the party’s solicitor or licensed conveyancer named in this contract or in a notice served by the party;”

32. Clause 2 relevantly stated:

“2    Deposit and other payments before completion

2.1 The purchaser must pay the deposit to the depositholder as stakeholder.

2.2    Normally, the purchaser must pay the deposit on the making of this contract, and this time is essential.

2.3    If this contract requires the purchaser to pay any of the deposit by a later time, that time is also essential.

2.4    The purchaser can pay any of the deposit only by unconditionally giving a cheque to the depositholder or to the vendor, vendor’s agent or vendor’s solicitor for sending to the depositholder. [1]

2.5    If any of the deposit is not paid on time or a cheque for any of the deposit is not honoured on presentation, the vendor can terminate. This right to terminate is lost as soon as the deposit is paid in full.

2.6    If the vendor accepts a bond or guarantee for the deposit, clauses 2.1 to 2.5 and 3 do not apply.

2.7    If the vendor accepts a bond or guarantee for part of the deposit, clauses 2.1 to 2.5 and 3 apply only to the balance.

2.8    If any of the deposit or of the balance of the price is paid before completion to the vendor or as the vendor directs, it is a charge on the land in favour of the purchaser until termination by the vendor or completion, subject to any existing right.” [2]

1. Clause 2.4 was amended by clause 32.1 in the Special Conditions for Sale of Land (“Special Conditions”) to delete the words “cash up to $2,000 or”.

2. Clause 2.9 was deleted by clause 32.2 in the Special Conditions.

33. Clause 20 relevantly stated:

“20    Miscellaneous

…

20.5    A party’s solicitor can receive any amount payable to the party under this contract or direct in writing that it is to be paid to another person.

20.6     A document under or relating to this contract is –

20.6.1 signed by a party if it is signed by the party or the party’s solicitor (apart from a direction under clause 4.3);

20.6.2 served if it is served by the party or the party’s solicitor;

20.6.3 served if it is served on the party’s solicitor; even if the party has died or any of them has died;

20.6.4 served if it is served in any manner provided in s 170 of the Conveyancing Act 1919;

20.6.5 served if it is sent by fax to the party’s solicitor, unless it is not received;

20.6.6 served on a person if it (or a copy of it) comes into the possession of the person; and

20.6.7 served at the earliest time it is served, if it is served more than once.”

34. Clause 21 relevantly stated:

“21   Time limits in these provisions

21.1   If the time for something to be done or to happen is not stated in these provisions, it is a reasonable time.

21.2   If there are conflicting times for something to be done or to happen, the latest of those times applies.”

Deed of Variation

35. The Deed of Variation of the Put and Call Option Agreement (“Deed of Variation”) dated 12 April 2016 was entered between Mr Coplin (referred to as “Grantor”) and Al Maha Pty Ltd (referred to as “Grantee”).

36. Clause 1.1 set out the following definitions:

“1.   Definitions and Interpretations Clauses

1.1 Definitions

In this deed, unless the context otherwise requires or permits:

Option Agreement means the put and call option agreement dated 16 October 2014 between the Grantor and the Grantee in respect of the Property.

Property means the land contained in Certificate of Title Folio identified 8/3/7259 known as XXXX, St Leonards NSW.

All terms defined in the Option Agreement which are not separately defined in this deed will have the same meaning when used in this deed. In the event of any inconsistency between the terms of this deed and the Option Agreement, the terms of this deed will prevail.”

37. Clause 2 stated:

“2. Variation of Option Agreement

2.1    With effect from the date of this deed, the Grantor and the Grantee agree to vary the Option Agreement in the manner as set out in Schedule 1.

2.2    Other than as specified in this deed, the Option Agreement will continue to be binding on the Grantor and the Grantee.

2.3    The Grantor and the Grantee each affirm the Option Agreement as varied by this deed.”

38. Schedule 1 to the Deed of Variation stated:

“Schedule 1 Variation of Option Agreement

The Option Agreement is varied as follows:-

(a)    delete the definition of Call Option Exercise Period from clause 1.1 and replaced it with the following definition:

“Call Option Exercise Period means the period beginning at 9:00 am on the 43rd day after the date of this deed and ending at 4:00 pm on the date that is 30 calendar days after judgment being handed down in the Proceeding.”

(b)    delete the definition of Put Option Exercise Period from clause 1.1 and replacing it with the following definition:

“Put Option Exercise Period means the period commen[c]ing at 9:00am on the day after the expiry of the Call Option Period and ending at 4:00pm on the date that is seven business days later.

(c)    insert new definition in clause 1.1 as follows:

“Proceeding means the proceeding commenced by Iraklis Gary Coplin in the Supreme Court of New South Wales (Proceeding Number 2015/143602), including any appeal of that proceeding.””

Decision of the primary judge

39. The principal issue before the primary judge was whether the option granted by the appellant to the first respondent in clause 2 of the Option Deed was validly exercised in accordance with clause 3 of the Option Deed and the notice requirements in clause 28 of the Option Deed. There was also an issue relating to set off which was determined by the primary judge and is not the subject of this appeal.

40. The primary judge found, by reference to the draft contract for sale of land which was Annexure E to the Option Deed, that Ms Tait, as the appellant’s conveyancer, was the “Depositholder” and remained the “Depositholder”.

41. Exercise of the option involved three steps which his Honour found were intended to be simultaneous, one of which was payment of the “Deposit” to the “Depositholder”, Ms Tait. The construction adopted by the primary judge avoided what his Honour said was an uncommercial result, that by an uncommunicated and unilateral act (withdrawing instructions to his conveyancer) the appellant could vitiate one of the means of exercising the option.

42. The primary judge found that “by reference to the text, context and commercial purpose of the [Option Deed], a reasonable business person would have understood “solicitor/conveyancer” in clause 28(a) of the [Option Deed] to mean that party’s solicitor or conveyancer listed as such” in the annexed draft contract for the sale of land. The Option Deed was entered into on the basis that each party had retained a solicitor/conveyancer who was identified as such in the draft contract for sale of land which was annexed to the Option Deed.

43. Whilst the primary judge described the appellant’s argument that a party’s solicitor/conveyancer was the person currently acting for the party at the time of service as “immediately attractive for its straightforwardness”, his Honour rejected that construction for four reasons:

1. First, this interpretation would pay insufficient attention to the context (namely the terms of the Option Deed relating to the “Depositholder” and “Security Amount” and the requirements of the exercise of the option in clause 3).

2. Secondly, his Honour distinguished Young J’s decision in Pratt & Anor v Hawkins (No 2) (1991) NSW ConvR 55-592 as that case concerned the 1988 standard form of contract. His Honour concluded that Young J’s judgment was based on the clauses in that earlier standard form.

3. Thirdly, the argument gave insufficient attention to the legal reality that the giving of the notice under the Option Deed was not just for the purpose of putting the other party on notice of something, but primarily to bring about a legal effect, namely the exercise of the option. Thus, the notice requirements go to the very purpose of the Option Deed.

4. Fourthly, his Honour found that the appellant’s construction of the Option Deed would lead to an uncommercial result as the appellant could foil the respondents’ attempt to exercise the option by removing himself from the jurisdiction (thereby preventing personal service) and terminating the retainer of his conveyance.

44. The primary judge found that a valid exercise of an option required strict compliance with the terms of the option granted by the Option Deed. Those terms set out a series of objectively verifiable actions within the control of the grantee of the option to perform in a particular way and within a particular period of time. The relevant inquiry, his Honour found, was not whether Ms Tait in fact held instructions to act as the appellant’s conveyancer on 21 December 2017, but whether she answered the defined description contained in the Option Deed and draft contract for sale annexed to the Option Deed. On this construction, it did not matter that Ms Tait was not actually retained by the appellant at the relevant time.

Notice of appeal

45. The notice of appeal dated 20 November 2018 contained nine grounds and numerous sub-grounds as follows:

“1   The trial judge erred at J[34] of the Judgment in finding that a reasonable business person would have understood "solicitor/conveyancer" (the "Disputed Term") in clause 28(a) of the Put and Call Option Agreement dated 16 October 2014 (referred to as the "Agreement") to mean that party's solicitor or conveyancer listed as such in the contract for sale of land (the "Contract") annexed to the Agreement (in the absence of having received a notice under the Contract otherwise).

2   In making the finding referred to in Appeal Ground #1 above, the trial judge erred in failing to consider and/or failing to give appropriate weight to the following matters:

(a)    the Disputed Term was not defined in the Agreement or the Contract;

(b)    while the Agreement expressly defined a number of “important terms” by reference to the Contract (as recognised by the trial judge at J[35(1)]), the Agreement did not do so for the Disputed Term;

(c)    the Disputed Term was drafted in a present possessive form in clause 28 of the Agreement;

(d)    although the Agreement required the Security Amount (referred to in clause 8 of the Agreement) to be paid to the “Depositholder” (defined in clause 1.1 of the Agreement by reference to the Contract), clause 3.2 of the Agreement did not require payment of the Deposit to the “Depositholder” but instead referred to payment “in accordance with the Contract” (which allowed payment to the vendor, the vendor's agent or the vendor's solicitor under clause 2.4 of the Contract);

(e)    the Contract did not come into effect until after the Option (as that term is defined at J[2]) was validly exercised;

(f)    a reasonable business person would not have concluded that the Option could be validly exercised by delivering a cheque and notice documents to a former solicitor/conveyancer of the Appellant whom the business person knew had no authority to act for the Appellant; and/or

(g)    the construction adopted by the trial judge effectively precluded a valid exercise of the option by delivery of the cheque and notice documents to the address of the Appellant in favour of a construction where the First Respondent could deliver the cheque and documents to someone that it knew had no authority to act for the Appellant (and/or deposit the cheque).

3   In support of his construction of the Disputed Term (as referred to in Appeal Ground #1 above), the trial judge erred in finding that:

(a)    the exercise of the Option involved three steps which were intended to be simultaneous (at J[6(2)], J[35(11)]);

(b)    the construction avoided an uncommercial result (at J[6(3)], J[52] to J[56]);

(c)    upon exercise of the Option, the Deposit had to be paid to the “Depositholder” (at J[35(8)]);

(d)    the construction was not contrary to public policy (at J[37]);

(e)    the Appellant's proposed construction of the Disputed Term interpreted the words “party's solicitor/conveyance” in isolation from the rest of the Agreement (at J[45]);

(f)    the decision of Young J (as His Honour then was) in Pratt & Anor v Hawkins (No 2) (1991) NSW Conv55-592 was distinguishable (at J[46] to J[47]);

(g)    the notice provision of the Option Agreement was not for the purpose of providing notice but to bring about a legal effect (at J[48]), so it did not matter if the documents were delivered to someone who had no obligation to forward them to the Appellant (notwithstanding that the Appellant had an obligation to immediately exchange Contracts with the Second Respondent under clause 6(a) of the Contract); and/or

(h)    the Option could not be exercised if the Appellant removed himself from the jurisdiction (at J[54]).

4   The trial judge ought to have found that the Disputed Term should be construed as the solicitor or conveyancer retained by the party at the time the relevant notice is given.

5   Alternatively to Appeal Grounds #1 to #4 above, the trial judge should have found that the Agreement was void for uncertainty.

6   The trial judge erred in failing to find that the Deposit was not paid in accordance with the Contract in circumstances where:

(a)    the cheque was provided to an alleged “Depositholder” who did not have authority to accept the cheque (or otherwise act on behalf of the Appellant);

(b)    the alleged “Depositholder” did not wish to act as a “Depositholder” or accept any fiduciary or other obligations as such and returned the cheque to the solicitors for the First and/or Second Respondents; and

(c)    the cheque was accordingly never deposited and the Second Respondent never made any further attempt to pay the deposit or deliver a cheque in accordance with the Contract prior to the date of the hearing of the proceedings.

7   The trial judge erred at J[57] in finding that the Option was validly exercised and that a contract (the “Resulting Contract”) in terms of the Contract was in effect between the Second Respondent and the Appellant.

8   The trial judge erred in failing to find that (assuming that the Resulting Contract was in effect as found by the trial judge at J[57]):

(a)    the deposit required to be paid under the Resulting Contract was never paid by the Second Respondent; and

(b)    the Resulting Contract was validly terminated by the Appellant on 22 October 2018.

9   The trial judge erred in J[69] and J[72] of the Judgment in making an order for specific performance:

(a)    in circumstances where the Second Respondent did not:

(i)    provide any evidence of her financial position and/or ability to perform the Contract; and/or

(ii)    satisfy her burden of proving that she was ready, willing and able to perform the Contract;

(b)    notwithstanding the matters in (a) above, finding that (at J[69]):

(i)    “it seems highly unlikely that the plaintiffs would have gone to the trouble of running these proceedings only to fall at the hurdle of completion of the Contract”; and

(ii)    making the order for specific performance conditional on the payment of $110,000 (being 1/20 of the total amount of $2.2 million payable under the Contract) as a Deposit would “deal with this aspect of the matter”.”

46. Immediately prior to the hearing the appellant filed a notice of motion dated 3 May 2019 seeking leave to file an amended notice of appeal which sought to add additional grounds styled ground 1A and ground 2(h) as follows:

“1A    The trial judge erred in finding, at J[35(13)] of the Judgment, that Ms Tait was, as at 21 December 2017,

(a)    the Appellant’s “conveyancer” or “solicitor/conveyancer”, and/or

(b)    the “Depositholder”

under either the Agreement or the Contract.

2   In making the findings referred to in Appeal Grounds #1 and #1A above, the trial judge erred in failing to consider and/or failing to give appropriate weight to the following matters:

…

(h)    the Appellant gave notice in writing to the First Respondent, by email to its solicitors on 23 October 2014 (Blue 372), that his solicitor was Mr John Poole of Maurice, Buckley, CT Poole and Son.”

47. Despite the prolixity of the notice of appeal the appellant accepted that the issues in the appeal fell into four broad categories:

1. Grounds 1-4 – whether the first respondent validly exercised the option;

2. Grounds 5, 6 and 7 – uncertainty, payment of the deposit, and validity of the resulting contract;

3. Ground 8 – validity of the purported termination of the resulting contract; and

4. Ground 9 – whether specific performance should have been ordered.

48. I will address the appeal under these suggested headings before addressing the proposed new grounds 1A and 2(h).

Grounds 1-4 – whether the first respondent validly exercised the option

Appellant’s submissions

49. The appellant submitted that the central issue was whether the delivery of the documents to Ms Tait satisfied the requirements of clause 28(a) of the Option Deed. If it did not, there was no valid exercise of the option and the resulting contract for the sale of land, predicated on that exercise, never came into effect. The appellant submitted that the term “solicitor/conveyancer” was not defined in the Option Deed and that clause 28 of the Option Deed contains the only reference to the term “solicitor/conveyancer”. It was submitted that clause 28 is a general notice provision and does not just apply to the giving of notices or documents in relation to the exercise of the option.

50. The appellant submitted that the primary judge ought to have found that “solicitor/conveyancer” means the solicitor or conveyancer actually retained by the party at the time the relevant notice is given. The appellant submitted that the primary judge erred in finding that a reasonable business person would have understood “solicitor/conveyancer” to mean that party’s solicitor or conveyancer listed in the draft contract attached to the Option Deed (ground 1). It was submitted that, unlike other important terms in the Option Deed, “solicitor/conveyancer” was not defined by reference to the draft contract (or at all in the Option Deed). If the parties had intended for the term to be interpreted by reference to the draft contract annexed to the Option Deed they would have expressly so provided (grounds 2(a) and 2(b)).

49. The appellant submitted that, as a starting point in construing the Option Deed, the plain and ordinary meaning of the term should be considered. The term is drafted in a present possessive form. The Option Deed does not identify any particular solicitor or conveyancer. Thus, the plain and ordinary meaning of the term is the person currently acting for the party at the time of delivery of the notice or documents and does not include a “former” solicitor/conveyancer. The appellant submitted that while it is not disputed that the draft contract at Annexure E formed a part of the Option Deed, the draft contract should only be considered to the extent that the Option Deed specifically referred to the draft contract and/or its terms. The fact that there are inconsistent terms and provisions in the Option Deed and the draft contract confirms that it was not intended for the terms of the draft contract to be read into the Option Deed on a wholesale basis.

50. The appellant submitted that the language of clause 28 demonstrates an intention by the parties to ensure that such notices or documents provided by them are actually received by the other party. It can be expected that, as agent, any solicitor/conveyancer actually retained by the grantee of the option will pass on documents to the client. In this case, the documents never came into the appellant’s possession, thus the appellant could not perform his obligations under the Option Deed.

51. The appellant submitted that the primary judge erred in finding that notices are given “primarily to bring about a legal effect, namely the exercise of the Option” and that it was not particularly important whether the appellant was constructively or actually put on notice of the matters set out in the notice. This, it was submitted, must be incorrect as the appellant had an obligation immediately to sign and exchange the contract pursuant to clause 6(a) of the Option Deed, which he could not do if he did not receive or have notice of the contract (ground 3(g)). It was submitted that the primary judge’s construction of the Option Deed interpreted the words “party’s solicitor/conveyancer” in isolation from the rest of the Option Deed (ground 3(e)).

52. The appellant submitted that the primary judge referred to page 1 of the draft contract in Annexure E which named the “vendor’s solicitor/conveyancer” as Ms Tait, a finding which suggests that his Honour viewed that the use of similar words in the draft contract meant that they were intended to be incorporated into the Option Deed. It was submitted that this is not supported by the inconsistent language used in the Option Deed and the draft contract (ground 1). For the purposes of the Option Deed, the appellant was not referred to as the “vendor” but rather as the “grantor” or “party” to the deed and would not become the “vendor” until after the option was properly exercised and a contract for the sale of land came into effect (ground 2(e)).

53. The appellant submitted that the primary judge’s construction is unreasonable as it would allow the first respondent validly to exercise the option by delivering a cheque and notice documents to the appellant’s former conveyancer, Ms Tait, even though the first respondent knew she had no authority to act for him. Furthermore, it is unlikely that Ms Tait could have deposited the cheque into her trust account without instructions from the appellant. She rightfully returned the documents to the respondents’ solicitors.

54. The appellant submitted that a reasonable business person would not have concluded that the option could have been validly exercised in the above scenario, particularly in circumstances where the first respondent could have delivered the documents to the appellant’s address, which was clearly set out on page 1 of the Option Deed (ground 2(f)).

55. The appellant submitted that, on the primary judge’s construction, the option could never be exercised by the delivery of the documents to the first respondent’s address, as the exercise involved three steps intended to be simultaneous, and one of those steps was paying the deposit to the “Depositholder” (who could only be a solicitor/conveyancer), only the two steps could be performed simultaneously, thus depriving the appellant of one of his contracted means of receiving notice (ground 2(g)). The appellant submitted that the primary judge, in any event, erred in finding that three steps in exercising the option were intended to be simultaneous: only clauses 3.2(a) and (b) have to be performed on the “same date”, but the exercise of the option as a whole must be done during the Call Option Exercise Period.

56. The appellant submitted that the primary judge’s construction was inconsistent with Pratt v Hawkins (No 2). The primary judge erred in finding that Pratt v Hawkins (No 2) was distinguishable for two reasons (ground 3(f)):

1. while Pratt v Hawkins (No 2) concerned the construction of a contract for the sale of land, it broadly related to the giving of notice under any type of contract and thus applies to the construction of the notice provision of the Option Deed; and

2. the primary judge did not explain how the fact that the 1988 form of contract did not contain any provision similar to “Depositholder” is the “important point for present purposes”. Indeed, paragraph 2(f) (in the passage quoted by the primary judge) states that all monies payable to the vendor “shall be paid to the vendor’s solicitor, or as that solicitor may direct in writing”, which is similar to the solicitor assuming the role of a “Depositholder” in the current form of contract.

59. The appellant submitted that the practical effect of the primary judge’s construction would be contrary to public policy in that it would require the appellant to have a solicitor/conveyancer acting for him at all times. If the construction preferred by the primary judge was correct, the appellant could not have changed his conveyancer at any time after the commencement of the Option Deed before the option was exercised. This was because the notice provision for changing legal representation in the draft contract does not apply to the Option Deed as the draft contract itself does not come into effect until after the option was exercised (ground 3(d)).

60. The appellant submitted that the primary judge erred in stating that his Honour’s construction avoids uncommercial results, in that one party could unilaterally vitiate the means of exercising the option. It was submitted that the results of his Honour’s interpretation are also uncommercial. Those results include:

1. the appellant being bound to continue to retain Ms Tait as his conveyancer (or risk being in breach of the Option Deed);

2. the purchaser under the draft contract could indefinitely keep the monies representing the deposit to her benefit; and

3. delivery to Ms Tait’s prior address strictly would have been required (although in fact Ms Tait had moved, and the first respondent delivered the documents to her new address).

Respondents’ submissions

61. The respondents submitted that the terms of the draft contract in Annexure E were relevant when construing the Option Deed for several reasons. The draft contract was referred to throughout the operative provisions of the Option Deed and the text of the Option Deed objectively revealed an intention that the terms of the draft contract would be considered when construing the terms of the Option Deed as the option was granted “on the terms and conditions contained in the Contract”.

62. The respondents submitted that the Option Deed granted the first respondent a call option to purchase the property on the terms and conditions contained in the draft contract annexed to the Option Deed. The first respondent was required to pay a $110,000 Security Amount in two tranches: $75,000 on the date of the Option Deed and $35,000 two months later.

63. Under the Option Deed, it was mandatory for the first respondent to pay each tranche of the Security Amount to the “Depositholder” defined in the draft contract in Annexure E. Page 1 of the draft contract stated that the term “vendor’s solicitor/conveyancer” meant “V.J Tait & Associates, Licenced Conveyancers”. The Option Deed contained the parties’ agreement that Ms Tait was the “Depositholder”. The first respondent was obliged to pay the two tranches of the Security Amount to her.

64. The respondents submitted that the Option Deed provided the process by which the first respondent must exercise the call option:

1. give to the Grantor the Notice of Exercise of Call Option;

2. give to the Grantor one copy of the contract signed by the Grantee; and

3. pay the Deposit in accordance with the draft contract.

65. The respondents submitted that there was an agreed mechanism by which the appellant could unilaterally change his solicitor/conveyancer – by written notice in which he named another solicitor or conveyancer. At no time did the appellant do this. The respondents submitted that, beyond the agreed mechanism, it was not possible for the appellant to unilaterally alter the parties’ agreement by changing his solicitor/conveyancer. The requirement to give notice was not a formality, but an agreed safeguard to protect the first respondent from prejudice caused by a change. Nothing that occurred in December 2017 had the effect of changing Ms Tait’s status as the appellant’s solicitor/conveyancer for the purposes of the Option Deed.

66. The respondents submitted that all three steps required for the exercise of the call option needed to be taken simultaneously for the following reasons:

1. the Notice of Exercise of Call Option had to be dated the same date that the option was exercised;

2. the signed contract had to be dated the same date as the Notice of Exercise of Call Option;

3. the contract was deemed to have been entered into “at the time of exercise” of the call option; and

4. the Deposit had to be paid in accordance with the contract, which required payment to be made “on the making of this contract” (time essential).

67. The identity of the appellant’s solicitor was an important matter under the Option Deed, and there was no objective reason that the parties should not be taken to have intended that the appellant’s solicitor be agreed with certainty for some purposes of the Option Deed, such as the payment of the Security Amount and the Deposit, yet not for other purposes such as the service of notices.

68. The respondents submitted that, were the Option Deed to be construed otherwise, the appellant would have had the means to defeat the exercise of the call option by replacing Ms Tait without notice. This would be an uncommercial result.

69. The respondents submitted that Young J’s construction of the 1988 edition of the standard form contract in Pratt v Hawkins (No 2) does not assist with the construction of the 2005 edition. The amendments made to the standard form since 1988 go to the heart of the construction issue in these proceedings. Young J had to construe the word “solicitor” to decide whether it meant the person named on page 1 of the contract or the party’s solicitor for the time being. Since this case, the standard form contract has been amended to add a definition of “solicitor” in clause 1 as meaning “in relation to a party, the party’s solicitor or licensed conveyancer named in this contract or in a notice served by the party”.

Consideration of grounds 1-4

70. There was little disagreement between the parties about the relevant legal principles. No complaint was made, at least in the written submissions, about the reliance by the primary judge upon the principles stated in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46]-[51], namely that the rights and liabilities of parties under a provision of a contract are determined objectively, by reference to the contract’s text, context and purpose, and that the relevant question in considering a commercial contract is what a reasonable business person would have understood the terms of the contract to mean and such terms should not be construed to produce an uncommercial result. At [46], French CJ, Nettle and Gordon JJ, in a passage relevant to the present case said:

“[46] The rights and liabilities of parties under a provision of a contract are determined objectively (Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at 656 [35]), by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose: Codelfa Construction Pty Ltd v State Rail Authority(NSW) (1982) 149 CLR 337 at 350 (citing Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574), 352. See also Sir Anthony Mason, “Opening Address”, Journal of Contract Law, vol 25 (2009) 1, at p 3.”

71. To the extent that Senior Counsel for the appellant submitted orally that the Option Deed “is not a commercial contract”, I reject that submission. This is not a simple sale by one occupier of a residence to another person who wants to live there. The Option Deed is a commercial agreement under which the appellant received a substantial payment up front in exchange for granting the option.

72. Senior Counsel for the appellant submitted orally that the statement of the law made by Gibbs J in Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99 at 109; [1973] HCA 36 was more appropriately brought into play in the present case than Mount Bruce. In that passage Gibbs J said:

“It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another.”

73. For my part I am unable to discern any difference in approach between the principle stated by Gibbs J in APRA and the relevant statements of principle by the plurality in Mount Bruce quoted at [70] above. The difference, if there be a difference, has no part to play in the determination of this case. Nothing in Mount Bruce casts any doubt in the passage from APRA. In accordance with each decision, the correct approach to construction involves an “endeavour to discover the intention of the parties from the words of the instrument”. The “whole of the instrument” has to be considered. The “intention” referred to is the objective intention of the parties. The words of every clause “must if possible be construed so as to render them all harmonious one with another”.

74. It may immediately be acknowledged that a good deal of the drafting of the Option Deed was infelicitous, including the fact that what was in truth a deed was referred to throughout as the “Put and Call Option Agreement”. In HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342 Leeming JA (in a passage Bathurst CJ and I agreed with), referring to internal inconsistencies and drafting infelicities, said:

“[135] … in complex cases such as the present, it is likely that there will be internal inconsistencies or infelicities on any construction. It is important therefore not to conclude the evaluation too soon. Just because one party’s preferred construction leads to a result which is internally inconsistent does not mean that the other party’s competing construction is the legal meaning. The other construction may, on analysis, involve a more serious internal inconsistency.” (Emphasis in original.)

75. It is of course correct, as the appellant emphasised, that the task here engaged is to construe the Option Deed. The draft contract for sale of land was Annexure E to the Option Deed. The draft contract in Annexure E was defined in the Option Deed as being the “Contract”. The text of the draft contract for sale in Annexure E was itself part of the Option Deed. It is not only permissible but necessary to take Annexure E into account in construing the remaining parts of the Option Deed.

76. The text of the Option Deed objectively reveals an intention that the terms of the draft contract would be considered when construing the terms of the Option Deed. The grant of the call option in clause 2 and the put option in clause 4 of the Option Deed were each expressed as granted “on the terms and conditions contained in the Contract”, which of course is a reference to the terms of the draft contract in Annexure E.

77. The draft contract for sale of land was also referred to throughout the operative provisions of the Option Deed. Key terms in the Option Deed, set out at [22] above, “Property”, “Sale Price”, “Deposit” and “Depositholder” were defined in clause 1.1 by reference to the terms of the draft contract.

78. Pursuant to the call option granted by clause 2, here sought to be exercised, the grantee was required by clause 8 to pay a $110,000 “Security Amount” in two tranches. The first tranche, $75,000, was payable on the date of the Option Deed, and was released to the grantor on the date of the Option Deed. The second tranche, $35,000, was payable 12 months later.

79. Page 1 of the draft contract in Annexure E to the Option Deed defined the term “vendor’s solicitor/conveyancer” to mean “V.J Tait & Associates, Licenced Conveyancers”. Clause 1.1 of the Option Deed recorded the parties’ agreement that “VJ Tait & Associates, Licenced Conveyancers” was the “Depositholder” under the Option Deed. This was because “Depositholder” means “the Depositholder under the Contract”.

80. In the draft contract “depositholder” was defined to mean “vendor’s agent or if no vendor’s agent is named in this contract, the vendor’s solicitor”. No vendor’s agent was named in the draft contract. “Solicitor” was defined in the draft contract to mean “in relation to a party, the party’s solicitor or licensed conveyancer named in this contract or in a notice served by the party”. Subject only to the new grounds advanced for the first time in this Court, the only “solicitor” as defined was VJ Tait & Associates. Subject only to the new argument, VJ Tait & Associates was the “depositholder” under the Option Deed.

81. The clause critical to the exercise of the call option was clause 3.2 of the Option Deed which, it will be recalled, provided as follows:

“3.    Exercise of Call Option

…

3.2    Conditions of exercise of Call Option

If the Grantee wishes to exercise the Call Option it must during the Call Option Exercise Period:

(a)   give to the Grantor the Notice of Exercise of Call Option signed by the Grantee and dated the same date that the Call Option is exercised;

(b)   give to the Grantor one copy of the Contract signed by the Grantee and dated the same date as the Notice of Exercise of Call Option; and

(c)    pay the Deposit in accordance with the Contract.”

82. Clause 28 of the Option Deed provided:

“28.    Notices

(a)    All notices or documents required or permitted to be given by one party to another under this deed must be in writing, addressed to the other party or their solicitor/conveyancer; and:

(i)   delivered to that party’s address or their solicitor’s/conveyancer’s; or

(ii)    delivered to a party’s solicitor’s/conveyancer’s DX; or

(iii) transmitted by facsimile transmission to that party’s address or their solicitor’s/conveyancer.

(b)    A notice given to a party under clause (a) above is treated as having been given and received:

(i)   if delivered to a party’s address or their solicitor’s/conveyancer on the day of delivery if a Business Day, otherwise on the next Business Day; and

(ii)   if delivered to a party’s solicitor’s/conveyancer by DX, on the second Business Day after the delivery to the document exchange servicing that solicitors/conveyancers DX, if a Business Day, otherwise on second Business Day after the next Business Day; and

(iii)   if transmitted by facsimile to a party’s facsimile number or their solicitor’s/conveyancer’s and a correct and complete transmission report is received, on the day of transmission if a Business Day, otherwise on the next Business Day.”

83. The appellant accepted in oral argument that, subject to the new argument, it was difficult to resist the proposition that the deposit, in the form of a cheque, could be paid by giving a cheque to the depositholder VJ Tait & Associates under the Option Deed pursuant to clause 3.2(c). The appellant submitted, however, that clauses 3.2(a) and (b) do not in terms adopt the terms defined in the draft contract in Annexure E as applicable to the exercise of the call option. Whilst that submission may be accepted, it does not answer the question of construction here posed.

84. In circumstances where the Option Deed does not identify a mechanism for serving documents referred to in clauses 3.2(a) and (b) on the grantor, clauses 3.2(a) and (b) read with clause 28 provide that the documents referred to may be served on the grantor’s “solicitor/conveyancer”. The question is whether that “solicitor/conveyancer” is to be understood as being the “solicitor/conveyancer” identified in Annexure E.

85. The connected set of documents here, as a whole, evince an intention that the “solicitor/conveyancer” named in Annexure E to the Option Deed meets the description of a person or entity upon whom notices can be served pursuant to clause 28 of the Option Deed. It is tolerably clear that, objectively, the parties intended the “solicitor/conveyancer” identified in Annexure E to be treated as the “solicitor/conveyancer” for the purposes of clause 28 of the Option Deed. The only “solicitor/conveyancer” identified in this suite of documents was VJ Tait & Associates. The primary judge was correct to conclude that recourse may be had to the “solicitor/conveyancer” identified in Annexure E to the Option Deed for this purpose.

86. I reject the appellant’s construction that Ms Tait was not the “solicitor/conveyancer” under the Option Deed. The construction I prefer does not assume that the language of the draft contract at Annexure E of the Option Deed “dictates” the meaning of terms in the Option Deed. The identical language used in clause 28 and on page 1 of Annexure E (“solicitor/conveyancer”) does, however, support my conclusion that the text of the Option Deed, objectively, reveals an intention that the terms of the draft contract in Annexure E would be considered when construing the terms of the Option Deed. The reference in clause 28 of the Option Deed to “solicitor/conveyancer” should be construed consistently with the definition of the same term on page 1 of Annexure E to the Option Deed. This permits the two documents, each a part of the same Option Deed, to be read harmoniously throughout with internal coherence. This construction affords a commercial outcome in the exercise of the options granted by the Option Deed by ensuring that neither party can frustrate the counter-party’s exercise of an option by changing the identity of the named “solicitor/conveyancer” and not notifying the relevant counter-party.

87. The appellant’s suggested construction is, in essence, that the service of the notice of exercise of the option could not be effected on the named solicitor/conveyancer if the solicitor/conveyancer did not have the actual authority of the appellant, notwithstanding there had been no notification to the first respondent of the change in representation.

88. This construction gives rise to an uncommercial result. If correct, the appellant would have had the means to defeat the exercise of the call option by replacing VJ Tait & Associates as his “solicitor/conveyancer” without notice to the first respondent. Senior Counsel for the appellant accepted that this state of affairs was “not ideal”. I agree. A business-like construction of the Option Deed involves considering the terms of Annexure E to that Option Deed. That consideration supports the conclusion that the same person named as the “solicitor/conveyancer” continues in that role unless and until notice in accordance with clause 28 is given of the replacement of the “solicitor/conveyancer” identified in this connected suite of documents.

89. The appellant is, however, correct that the primary judge erred in finding (at [35]) that the option could never be exercised by the delivery of the documents to the first respondent’s address as the exercise involved three steps intended to be simultaneous. The error is, however, of no consequence. As the appellant correctly submitted, only clauses 3.2(a) and (b) of the Option Deed have to be performed on the “same date”. The exercise of the option as a whole must be concluded during the Call Option Exercise Period. It is not necessary that the three steps in clause 3.2 be concluded simultaneously. This error in construction does not have an impact on the primary judge’s conclusion that the option here was effectively exercised.

90. No different result ensues because the appellant may have had an additional permissible method of exercising the option, namely serving the documents required by clauses 3.2(a) and (b) on the home address of the grantor himself.

91. I do not accept the appellant’s submission that clause 28 of the Option Deed supports his suggested construction by requiring that the recipient of a document receives that document in the sense they “actually have it”. Clause 28 provides a variety of mechanisms for service of notices or documents which deem receipt, whether or not the document is actually received.

92. The appellant also relied heavily upon the decision of Young J in Pratt & Anor v Hawkins (No 2) (1991) NSW ConvR 55-592 where his Honour said:

“… In my view, the word “solicitor” in cl 21 refers to the solicitor for the time being in the conveyancing transaction, and not to the solicitor named in the particulars, if there has been a change. It would seem to me, with respect to the argument to the contrary, that it would be absurd for the parties to be taken to have intended that if they had changed solicitor during the currency of a conveyancing transaction any notice had to be given to the original solicitors, rather than the current solicitor.”

93. This passage in Young J’s decision in Pratt v Hawkins (No 2) does not assist in the construction of the Option Deed and Annexure E being the 2005 edition of the standard form of the contract for sale. Pratt v Hawkins (No 2) involved the 1988 edition of the standard form contract.

94. The amendments made to the standard form since 1988 go to the heart of the construction issue in these proceedings. Young J had to construe the word “solicitor” to decide whether it meant the person named on page 1 of the contract or the party’s solicitor for the time being. Since this case, the standard form contract has been amended to add the definition in clause 1 that provides that a solicitor “in relation to a party, [means] the party’s solicitor or licensed conveyancer named in this contract or in a notice served by the party”.

95. The attempt to apply the construction reached by Young J in Pratt v Hawkins (No 2) to the 2005 version of the standard form of contract for sale thus fails at the first hurdle. The definition provision makes the appellant’s reliance upon Pratt v Hawkins (No 2) untenable in the present context.

96. Further, in Pratt v Hawkins (No 2), the context of his Honour’s remarks was that the counter-party had been notified of the identity of the solicitor for the time being. The decision is, for that additional reason, distinguishable.

97. Clauses 28 and 3.2 of the Option Deed plainly required the appellant to have a “solicitor/conveyancer”. The commercial rationale for that requirement is clear. The deposit is large. It was objectively important for the vendor and purchaser that the depositholder was a person or entity with an insurance policy. The appellant’s submission that it was possible that the appellant could instead have had an agent is hypothetical here and should be rejected for that reason. Annexure E to the Option Deed makes clear that the parties have here agreed that the appellant does not have an agent. I also reject the suggestion that the construction preferred is uncommercial because it requires the grantor to have a “solicitor/conveyancer”. This Option Deed is to be construed against a background where a grantor may be elderly and may, by the effluxion of time, not be of sound mind by the time the option comes to be exercised. This is potentially a large and recurring problem: see Hagerty v Hills Central Pty Ltd [2018] NSWCA 200. There is nothing uncommercial in the conclusion of the primary judge that the Option Deed required the grantor to have a “solicitor/conveyancer”.

98. Grounds 1-4 should be dismissed.

Ground 5 – uncertainty

Appellant’s submissions

99. The appellant submitted in writing, but did not repeat the submission orally, that the primary judge should have found the Option Deed was void for uncertainty. The use of the word “must” in clause 28(a) indicated that the terms for providing notices or documents are essential and must be strictly complied with in order for the exercise of the option to be effective: Comdox v Robins [2009] NSWSC 367 at [23]; Tonitto v Bassal (1992) 28 NSWLR 564 at 575. The appellant submitted, therefore, that it is expected that a provision in an option deed identifying the requirements for valid exercise of the option would be drafted with care and precision and would be unambiguous in their application. That was not the case here.

Respondents’ submissions

100. The respondents submitted that even if clause 28 of the Option Deed was ambiguous or capable of more than one meaning it does not mean that it was uncertain for the purposes of contract formation: Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429; [1968] HCA 8.

Consideration of ground 5

101. As the Honourable JD Heydon QC has explained in his recent treatise, Heydon on Contract (Thomson Reuters, 2019), at [3.330], “even if a contract seems to have more than one possible meaning or lead to more than one result or use very wide language or throw up difficulties in its interpretation, it is not necessarily void if the processes of construction lead to the choice of the meaning”. Courts will not lightly accept defeat in the search for meaning: Austra Tanks Pty Ltd v Running [1982] 2 NSWLR 840 at 843 (Wootten J).

102. A contract is only void “if the court is unable to put any definite meaning upon the contract”: Meehan v Jones (1982) 149 CLR 571 at 578; [1982] HCA 52 (Gibbs J). In Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd Barwick CJ said:

“[A] contract of which there can be more than one possible meaning or which when construed can produce in it application more than one result is not therefore void for uncertainty. As long as it is capable of a meaning, it will ultimately bear that meaning which the courts, or in an appropriate case, an arbitrator, decides is its proper construction: and the court or arbitrator will decide its application. The question becomes one of construction, of ascertaining the intention of the parties, and of applying it … In the search for [contractual] intention, no narrow or pedantic approach is warranted, particularly in the case of contractual arrangements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved.”

103. Clause 28 of the Option Deed is capable of a definite meaning. The submission that the Option Deed is void for uncertainty should be rejected.

104. Ground 5 should be dismissed.

Ground 6 – payment of the deposit

Appellant’s submissions

105. The appellant submitted in writing, but did not elaborate on the submission orally, that the primary judge erred in failing to find that the deposit was not paid in accordance with the contract. This was because, the appellant submitted, Ms Tait did not have authority from the appellant to accept the cheque: Ma v Adams [2015] NSWSC 1452 at [45]. It was not disputed that neither the appellant, nor anyone authorised by him at the time, received any cheque representing the deposit balance prior to the proceedings. The appellant submitted that even if Ms Tait had authority from the appellant to receive the deposit, she would not have been compelled to take the deposit; further, Ms Tait returning the cheque to the first respondent constituted “interference” in the sense the term was used in Josland v Mullaley Properties Pty Ltd (1993) 6 BPR 13,285 at 13,289 by Young J. The appellant submitted in reply that, whether or not the Court found that Ms Tait was the “Depositholder” does not change the fact that the first respondent did not validly exercise the option as Ms Tait was not the appellant’s “solicitor/conveyancer”.

106. The appellant submitted that the respondents’ submissions did not:

1. explain how deposit monies that remained in the possession of the second respondent and were able to be used by her as she pleased could be deemed to have been “paid”;

2. address the decision of Young J in Josland in which his Honour found that a cheque was not an acceptable means of paying a deposit where there was interference with its processing, the interference here being Ms Tait returning the cheque to the second respondent; and

3. differentiate Ma v Adams which clearly states that a “Depositholder” must have the authority of the vendor in order to accept a cheque on the vendor’s behalf and for it to constitute payment of the deposit in full.

Respondents’ submissions

107. The respondents submitted that the deposit, $220,000, was paid “in accordance with” the draft contract both as to amount and process. The first respondent paid both tranches of the Security Amount to Ms Tait without complaint. The second tranche was, in accordance with the draft contract, paid 12 months after the Option Deed was made.

108. The respondents submitted that the deposit was paid in accordance with the Option Deed and the contract by giving the cheque to the “Depositholder”, Ms Tait, on 21 December 2017. Ms Tait’s subsequent actions did not undo the payment of the deposit. The respondents submitted that where the “Depositholder” was the vendor’s solicitor/conveyancer or other agent, it was not necessary for the “Depositholder” to have actual authority to receive the cheque in order for the Option Deed or the contract for sale to be complied with. The respondents submitted that Ma v Adams did not assist the appellant. It was a case where the purchaser had breached the contract by failing to pay the deposit on the making of the contract. The respondents submitted that because the deposit was paid, the call option was validly exercised.

Consideration of ground 6

109. Orally, Senior Counsel for the appellant accepted that it was “difficult for us to avoid the proposition, apart from our new ground, … that the deposit, at least arguably, could have been served on Ms Tait” as the “Depositholder” within the meaning of the Option Deed. The first respondent paid both tranches of the Security Amount to Ms Tait without complaint. The second tranche was, in accordance with the contract, paid 12 months after the Option Deed was made.

110. It will be recalled that clause 2.4 of the draft contract for sale of land provided, relevantly, that “[t]he purchaser can pay any of the deposit only by unconditionally giving … a cheque to the depositholder …”.

111. The first respondent “paid” the deposit in accordance with the draft contract for sale of land by unconditionally giving the cheque to the “Depositholder” on 21 December 2017 for the remaining amount of the deposit. Ms Tait’s subsequent actions did not undo the payment by the first respondent. Where the “Depositholder” was the vendor’s solicitor/conveyancer, it was not necessary for the “Depositholder” to have actual authority to receive the cheque.

112. Ma v Adams does not govern this case. At [45], Robb J said:

“[45] The first basis for this conclusion depends upon what I consider to be the proper construction of the contract. I am prepared to accept, without deciding, that the final sentence of cl 2.5 does not have the effect that the right to terminate is not lost unless the deposit holder actually receives payment of the deposit in cleared funds. Ms Adams did not make a submission to the contrary. The wording of cl 2.4, in so far as it permits payment of the deposit by giving a cheque to the deposit holder, should have the effect that, if the deposit holder is given a cheque within the meaning of cl 1 of the contract after the making of the contract, and with the authority of the vendor, that will constitute payment of the deposit in full: see also Josland v Mullaley Properties Pty Ltd (1993) 6 BPR 13,285 at 13,289 where Young J (as his Honour then was) said: “The parties appear to have accepted by cl 2 of the contract – and in any event this may now be the position under the general law: see Tilley v Official Receiver in Bankruptcy (1960) 103 CLR 529 and George v Cluning (1979) 28 ALR 57; [1979] ANZ ConvR 227 – that a personal cheque is an acceptable method of paying a deposit.”

113. The context was that the purchaser in that case had breached the contract by failing to pay the deposit on the making of the contract. In the present case, because the deposit was paid in accordance with the Option Deed and the contract for sale, the call option was validly exercised.

114. Finally, I reject the submission that Josland sheds any light on the present issue. That was a case where clause 2 of the 1992 standard form contract was being considered, which is quite different to clause 2 of the standard form here engaged and, in any event, Young J held that clause 2 did not apply to the payment of the balance of the deposit in that case by reason of inconsistent special conditions in the contract for sale.

115. Ground 6 should be dismissed.

Ground 7 – validity of the resulting contract

Appellant’s submissions

116. The appellant submitted that if the Court found that the option was not validly exercised based on one or more of grounds 1-6, it follows that the primary judge erred in finding that a valid and enforceable contract was in effect between the appellant and the first respondent’s nominee, Ms Bechara.

Respondents’ submissions

117. The respondents submitted that, since the deposit had been paid under clause 3.2(a) of the Option Deed, the call option was validly exercised.

Consideration of ground 7

118. For the reasons I have given the call option was validly exercised.

119. Ground 7 should be dismissed.

Ground 8 – validly of the purported termination of the resulting contract

Appellant’s submissions

120. The appellant submitted that the primary judge erred in failing to find that the contract was validly terminated by the appellant on 28 October 2018. This ground only applies if the Court upholds the primary judge’s finding that the resulting contract was valid as the option was validly exercised on 21 December 2017.

121. After the cheque for the deposit balance was returned to the respondents’ solicitors by Ms Tait on 21 December 2017, the first respondent’s nominee, Ms Bechara, never paid or attempted to pay the deposit balance to the appellant as required by clauses 2.2 and 2.5 of the contract for sale.

122. The appellant submitted that the primary judge did not address the notice of termination dated 22 October 2018 served on the first respondent’s nominee, or its effect of terminating the resulting contract.

123. The appellant submitted that the primary judge ought to have found that:

1. the deposit required to be paid under the resulting contract was never paid by Ms Bechara to the appellant; and

2. the resulting contract was validly terminated by the appellant on 22 October 2018.

Respondents’ submissions

124. The respondents submitted that since the deposit had been paid on the making of the contract as required by clause 2, the appellant did not have the right to terminate the contract for sale of land which is now asserted.

Consideration of ground 8

125. I have found that the deposit was paid as required by clause 3.2 of the Option Deed and clause 2 of the contract for sale. The appellant did not have the right to terminate that contract for sale.

126. Ground 8 should be dismissed.

Ground 9 – whether specific performance should not have been ordered

Appellant’s submissions

127. The appellant submitted that the primary judge erred in ordering the resulting contract for sale of land be specifically performed. It was submitted that the first respondent’s nominee, Ms Bechara, was not ready, willing and able to perform the contract: Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 611; [1998] HCA 16. Ms Bechara did not provide any evidence of her financial position or ability to perform the resulting contract and was not available for cross-examination at the hearing.

128. The primary judge found that “it seems highly unlikely that the plaintiffs would have gone to the trouble of running these proceedings only to fall at the hurdle of completion of the contract”: at [69].

129. The appellant submitted that the primary judge should have taken into account the following equitable considerations:

1. the respondents were represented by lawyers at all times and deliberately made a decision to not put on any evidence;

2. in light of the above, the appellant had no opportunity to explore or challenge the second respondent’s financial position (which, the appellant asserts, may have been why she did not put on any evidence);

3. the second respondent never made an attempt to pay the deposit balance to the appellant during the nine months since the resulting contract purportedly came into effect; and

4. the second respondent admittedly had not paid overdue stamp duty on the resulting contract.

130. The appellant submitted that, while the primary judge noted that the above issue was not taken up in the appellant’s written submissions below, the submissions from both parties were due at the same time and it was only at this time that Ms Bechara stated, without evidence, that she was “ready, willing and able to perform the contract”. Thus the appellant’s first opportunity to respond to those submissions was at the hearing.

Respondents’ submissions

131. The respondents submitted that the totality of the material before the primary judge included the efforts and expense undertaken by the first respondent to uphold the Option Deed in the proceedings previously brought by the appellant, including by bringing an appeal, and the correspondence in early 2018 by which the respondents’ solicitors sought to arrange completion of the purchase with the appellant’s solicitors.

132. The respondents submitted that the primary judge ordered that there be a set off in the sum of $235,000 between the amount the second respondent is required to pay on completion of the purchase and the amount the first respondent would otherwise receive pursuant to the costs orders against the appellant in the previous proceedings. The fact that the first respondent sought the set off and thereby accepted a reduction in the costs it would otherwise recover is a demonstration of the respondents’ joint determination to complete the purchase.

133. The respondents submitted that the primary judge did not accept that the respondents made a deliberate decision not to put on evidence of their financial capacity (such evidence was served but the appellant objected so it was not pressed); and, there was no admission that the second respondent had not paid stamp duty on the contract, nor is it clear that it was payable where the appellant had not signed the counterpart contract.

Consideration of ground 9

134. It is correct, as the appellant submitted more than once, that it was for the second respondent to prove that she was ready, willing and able to complete the contract which arose upon the successful exercise of the option granted by the Option Deed.

135. There were no pleadings in this case, which, as is often the case, proved to be a false economy. If there had been pleadings, the fact that a party is ready willing and able would have been taken to be implied pursuant to the r 14.11 of the Uniform Procedure Rules 2005 (NSW). Regrettably that rule does not apply here.

136. It is not clear to me that the appellant had raised the issue, at least clearly and in a way the respondents could have addressed. Assuming without deciding, and favourably to the appellant, that the point that the second respondent was not ready willing and able to perform her obligations under the contract resulting from the exercise of the option under the Option Deed was clearly taken by the appellant at the trial, the point is without merit.

137. In this case, when the last point taken by the appellant in resisting a hard fought claim for specific performance is that the second respondent was not ready, willing and able to perform the contract, the Court is entitled to take a robust approach.

138. Whilst it is true that there was no oral evidence given by the second respondent about her financial position and subjective desire to obtain the property, the totality of the material before the primary judge included the efforts and expense undertaken by the respondents to uphold the Option Deed in the proceedings previously brought by the appellant and decided by Lindsay J and ultimately in this Court. The fact that the respondents promptly sought specific performance before the primary judge and the efforts and expense involved in that undertaking were also relevant to this question. In addition, there was abundant correspondence before the primary judge from which an inference that the second respondent was ready willing and able to perform her obligations under the contract should be drawn.

139. Ground 9 should be dismissed.

Grounds 1A and 2(h) – whether notice was given of a change in solicitor/conveyancer

Appellant’s submissions

140. Appeal grounds 1A and 2(h) are related and assert that the primary judge erred in finding that Ms Tait was, at 21 December 2017 (the date of purported exercise of the Option), the appellant’s “conveyancer” (or “solicitor/conveyancer”), and/or the “Depositholder”, under the draft contract and the Option Deed. The appellant submitted that, although the primary judge did not expressly find that the appellant did not “serve” any notice changing his “solicitor” or “conveyancer” from Ms Tait to someone else, such a finding is implicit in his reasons.

141. It was submitted that the evidence established that on 23 October 2014 at 11.34am the appellant sent a notice in writing by email to the first respondent (through its solicitors):

“… I was unable to obtain legal advice in relation to the sale of my home under a Put and Call Option from my solicitor, Mr John Poole of Maurice, Buckley CT Poole & Son before it was signed on 16 October 2014.”

142. The email was sent to Mr Poole, three of the respondents’ solicitors, and Ms Tait.

143. By this email, the appellant submitted that notice was “served”. It was submitted that the effect of the notice was that Mr Poole replaced Ms Tait as the appellant’s “solicitor/conveyancer” under the draft contract, and as such also became the “Depositholder” under the draft contract (and thus under the Option Deed). As a result, the first respondent’s service of documents and a cheque to Ms Tait was contrary to the Option Deed, as construed by reference to the draft contract, and the Call Option was not validly exercised.

Respondents’ submissions

144. The respondents submitted that the appellant’s new argument was not put to the primary judge and that his Honour could not have been expected to have reached that conclusion of his own accord. It was submitted that the primary judge was not referred to the email now said to be central to this case, nor was it even mentioned in the appellant’s chronology.

145. The respondents submitted that the finding for which the appellant now contends is inconsistent with his submissions to the primary judge. His submissions to the primary judge included:

1. there was no dispute that in October 2015 the first respondent paid the second tranche of the Security Amount in accordance with the contract. It was paid to Ms Tait as “Depositholder” under clause 8.3, not to Mr Poole;

2. on 19 December 2017 Ms Tait was still the appellant’s solicitor/conveyancer and hence authorised to give notice on behalf of the appellant that she was no longer acting;

3. apart from Ms Tait’s own email on 19 December 2017, there was no notice that Ms Tait was no longer acting, although the first respondent had “constructive notice” that Mr Berman was acting;

4. candidates for the primary judge to consider as the appellant’s alternative solicitor were Mr Berman and even Ms De Pasquale, but no reference was made to Mr Poole;

5. there was no “Depositholder” at all between 19 December 2017 and 8 January 2018.

146. The respondents submitted that there was no error by the primary judge as contended in new ground 2(h). Without that finding of fact, there was no error by the primary judge making the findings challenged in new ground 1A.

147. It was submitted that the new argument was not open to the appellant on the appeal. Consistent with the principles in Suttor v Gundowda (1950) 81 CLR 418 at 438; [1950] HCA 35, this is not an argument which may be run for the first time on appeal. Quite apart from the contradiction of the way the case was run below, the Court cannot now be satisfied that no evidence could have been adduced which by any possibility could have answered the new arguments. For present purposes:

1. The email dated 23 October 2014 must be construed objectively against the background of the dealings between the parties and all the circumstances of its receipt. The email was preceded by lengthy communications amongst the appellant (personally), Ms Tait, the first respondent’s buying agent (Mr Fox) and the respondents’ solicitors. Ms Tait had previously negotiated the terms of the Option Deed directly with the respondents’ solicitors, both in writing and orally. Enquiries into those communications would have been necessary to explain the circumstances in which the email was received on 23 October 2014.

2. The first respondent’s counsel chose not to cross examine Ms Tait or otherwise challenge her evidence before the primary judge.

3. Other matters would have had to be considered, such as the fact that at a time well after the email on 23 October 2014 (namely October 2015) the first respondent paid the second tranche of the Security Amount to Ms Tait as “Depositholder” without objection. An estoppel may have arisen.

148. The respondents submitted that, even if the appellant is permitted to advance the argument for the first time on appeal, it ought to be rejected for four reasons.

1. First, the email on 23 October 2014 was not a notice for the purposes of the definition of solicitor in clause 1 of the draft contract. Given that the notice would change important rights under the Option Deed and the draft contract, including as to service of future documents and holding the deposit as stakeholder, the requirement that there be “service” of a "notice" evinces an intention that there be some level of formality. The incidental reference in an email addressed to another topic altogether did not satisfy the contractual requirement of “notice”.

2. Secondly, identifying the information communicated by the email is a question of construction of the notice. The test is whether a reasonable recipient of the notice reading it against the background of the dealings between the parties and of all the circumstances of its receipt would have understood the effect of the notice. The reasonable recipient is taken to know the terms of the contract. The reasonable recipient of the email on 23 October 2014 would not have understood it to be a notice that Mr Poole would henceforth be the appellant’s solicitor/conveyancer for the purposes of exercise of the option and conveyance of the land.

3. Thirdly, even if the email was capable of constituting notice that Mr Poole was an additional solicitor named for the appellant, there is nothing in the email which stated that Ms Tait had ceased to be the appellant’s solicitor/conveyancer, at least for the purpose of exercising the option and conveying the land. On the contrary, the email was copied to Ms Tait indicating an ongoing role for her.

4. Fourthly, even if the email had the effect of replacing Ms Tait with Mr Poole on 23 October 2014, on 12 April 2016 the parties made a new deed, by clause 2 of which they affirmed the original terms of the Option Deed (other than as to the time for exercise). The result was that, as at 21 December 2017, Ms Tait was once again the appellant’s solicitor/conveyancer.

Consideration of grounds 1A and 2(h)

149. It is fundamental that a party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35; Coulton v Holcombe (1986) 162 CLR 1 at 7-9; [1986] HCA 33.

150. That principle applies in the present case insofar as the appellant failed at trial on a claim framed on a particular basis and sought to sidestep that result by reframing his case on appeal and alleging, for the first time, that adequate notice of a change in the appellant’s solicitor/conveyancer had in fact been given. Next, there is a wider principle that, even when there is no question of further evidence, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action: Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [51], referring with approval to Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631 at 645-646.

151. It was not seriously suggested by the appellant that the new points could not possibly have been met by further evidence at the trial. As the High Court remarked in Whisprun Pty Ltd v Dixon at [51]:

“Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination.”

152. Applied to the present case, the appellant elected to advance a case at trial based on a construction of the Option Deed inconsistent with that now advanced, even in the alternative. It is clear that the appellant’s new case could realistically have been met by the respondents calling evidence at the trial and by cross-examining witnesses they chose not to cross-examine.

153. If the appellant had raised this alternative claim at the trial the matter could have been explored in evidence and perhaps met by plea of estoppel. In those circumstances it is unnecessary to explore this matter further.

154. These issues cannot be raised for first time on appeal. It is thus unnecessary to explore the extent to which Ms Tait, as the appellant’s former licensed conveyancer, owed an obligation to the appellant to inform him that the notice of exercise of option, a notice nominating the second respondent as purchaser, a signed contract and a cheque for the deposit had been served on her.

155. In any event, even if the argument were permitted to be raised for the first time on appeal, and even assuming the email was capable of constituting notice that Mr Poole was acting as a solicitor named for the appellant in a way that had significance under the Option Deed, there is nothing in the email which stated that Ms Tait had ceased to be the appellant’s “solicitor/conveyancer”, at least for the purpose of exercising the option and conveying the land. On the contrary, the email was copied to Ms Tait, indicating an ongoing role. Ms Tait remained the appellant’s “solicitor/conveyancer” within the meaning of clause 28 of the Option Deed.

156. I would dismiss the notice of motion dated 3 May 2019 seeking leave to file an amended notice of appeal containing grounds 1A and 2(h).

Conclusion and orders

157. For the foregoing reasons I would dismiss the appeal. The orders I propose are:

1. Notice of motion seeking leave to amend the notice of appeal dated 3 May 2019 dismissed.

2. Appeal dismissed.

3. Appellant to pay the respondents’ costs as agreed or assessed.

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Endnotes

Decision last updated: 02 July 2019