Contracts - Construction and interpretation of contracts - Sale of real property - Principles concerning the effect of the term 'and/or nominee' on a contract for sale of land - Whether contract is void for uncertainty - Whether contract on its proper construction extended the period for the Planning Commission's approval to be endorsed on the subdivision plan - Finding that contract is not void for uncertainty and that the plaintiff is entitled to an order for specific performance

Legislation:

Planning and Development Act 2005 (WA), s 135, s 141
Supreme Court Act 1935 (WA), s 32

Result:

Judgment for plaintiff
Counterclaim dismissed

Category: A

Representation:

Counsel:

Plaintiff: Mr S Penglis
Defendants: Mr G H Lawton

Solicitors:

Plaintiff: Freehills
Defendants: Lawton Lawyers

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

Acemount Pty Ltd v Sunlong Holdings Pty Ltd (No 2) [2009] WASC 391
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Bell Brothers Pty Ltd & Stewart v Sarich [1971] WAR 157
Casella v Hewitt [2008] WASCA 13; (2008) 36 WAR 1
Condor Developments Pty Ltd v Helsby [2010] WASCA 16
Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305
Developments (WA) Pty Ltd v Whittle‑Herbert [2008] WASC 261
Fitzgerald v Masters (1956) 95 CLR 420
Harry v Fidelity Nominees Pty Ltd (1985) 41 SASR 458
Lord v Trippe (1977) 14 ALR 129
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Parland Pty Ltd v Mariposa Pty Ltd (1995) 5 Tas R 121
Pourzand v Home Building Society Ltd [2004] WASC 127
Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Tonelli v Komirra Pty Ltd [1972] VR 737

HASLUCK J:

Introduction

The plaintiff, CPG01 Pty Ltd, seeks specific performance against the defendants of a contract for the sale of land situated in a subdivision known as Drakesbrook Vista Estate near Waroona. On the plaintiff's case the sale was evidenced by a written agreement dated 9 July 2007 made between the plaintiff as vendor and the defendants as the buyers. The 2002 Joint Form of General Conditions for the Sale of Land were incorporated into the contract 'so far as they are not varied by or inconsistent with the express terms of this contract' (the 'General Conditions').
The defendants contend that they are not liable because the contract in question is void for uncertainty. Further, it is said that by reason of an alleged non‑compliance with certain…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CPG01 Pty Ltd v Kourinos

Details

AGLC: CPG01 Pty Ltd v Kourinos [2010] WASC 92
Case: [2010] WASC 92
Decision Date: 5 MAY 2010

CaseChat Overview and Summary

CPG01 Pty Ltd brought an action against Kourinos, seeking specific performance of a contract for the sale of real property. The dispute centred on the interpretation of the contract and the effect of the term 'and/or nominee' on the obligation of the purchaser to obtain the Planning Commission's approval for the subdivision plan. The case was heard in the Supreme Court of South Australia. The primary legal issues involved the construction and interpretation of the contract, specifically whether the term 'and/or nominee' rendered the contract void for uncertainty and whether the contract extended the period for the Planning Commission's approval.

The court considered the nature of the contract and the intention of the parties. It was noted that the contract was not void for uncertainty because the term 'and/or nominee' did not introduce an element of ambiguity that could not be resolved. The court found that the contract was clear in its requirement for the purchaser to obtain the Planning Commission's approval. Furthermore, the court held that the contract did extend the period for the Planning Commission's approval to be endorsed on the subdivision plan, as the term 'and/or nominee' was not intended to limit the time for obtaining such approval. Consequently, the court ruled that the plaintiff was entitled to an order for specific performance.

The final orders of the court included a declaration that the contract was not void for uncertainty and an order for specific performance of the contract, requiring the defendant to complete the sale of the property as agreed. The court's decision provided clarity on the interpretation of contracts involving the term 'and/or nominee' and the effect of such terms on the obligations of the parties in real property transactions.

Orders