Crown Sydney Property v Barangaroo Delivery Authority; Lendlease (Millers Point) v Barangaroo Delivery Authority - [2018] NSWSC 1931

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Crown Sydney Property v Barangaroo Delivery Authority; Lendlease (Millers Point) v Barangaroo Delivery Authority [2018] NSWSC 1931
Hearing dates: 29/10/2018, 30/10/2018, 21/11/2018, 22/11/2018, 23/11/2018, 26/11/2018, 27/11/2018, 28/11/2018, 29/11/2018
Date of orders: 14 December 2018
Decision date: 14 December 2018
Jurisdiction: Equity - Commercial List
Before: McDougall J
Decision:
See at [153] – [155]. Parties to bring in orders accordingly.

Catchwords: CONTRACT – construction of good faith negotiation provisions – where contract protects sight lines between existing planned developments and the Sydney Harbour Bridge and Sydney Opera House – consideration of the scope of such protection – where the Sight Lines Clauses are activated by an “application” providing for development different to an approved Concept Plan – meaning of the word “application” – whether defendant’s obligation to negotiate in good faith had been enlivened – consideration of the content of such negotiation – whether negotiations are required to commence from the position that the sight lines are to be retained – defendant did not comply with the negotiation process as required by the contract – appropriate declarations made.
Legislation Cited: Barangaroo Delivery Authority Act 2009 (NSW)
Environmental Planning and Assessment Regulation 2000 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Crown International Consortium Pty Ltd v Bruce Lyon (Holdings) Ltd [2009] NSWSC 1194
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544
Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151
Mackay v Dick (1881) 6 App Cas 251
Paciocco v Australia and New Zealand Banking Group Limited (2015) 236 FCR 199
Category: Principal judgment
Parties: Crown Sydney Property Pty Ltd (Plaintiff in Crown proceedings)
Lendlease (Millers Point) Pty Ltd as trustee for the Lend Lease (Millers Point) Trust (First Plaintiff in Lendlease proceedings)
Lendlease Corporation Ltd (Second Plaintiff in Lendlease proceedings)
Barangaroo Delivery Authority (Defendant in both proceedings)
Representation:
Counsel:
NJ Young QC / K Stern SC / M Astill / SH Hartford Davis / E Ball (Crown Sydney)
NC Hutley SC (29/10/18, 30/10/18) / AS Bell SC (from 21/11/18) / J Hutton / A Munro / J Kennedy (Lendlease)
AJL Bannon SC / SM Nixon SC / JA Arnott / A Zheng (Barangaroo Delivery Authority)
Solicitors:
Ashurst (Crown Sydney)
Jones Day (Lendlease)
Clayton Utz (Barangaroo Delivery Authority)

File Number(s): 2018/244619; 2018/244638

Judgment

HIS HONOUR: On the eastern shore of what is now Darling Harbour, where once Aboriginal people went about their daily lives, and later, in the Great Depression of the 1930’s, men fought for jobs, thousands of Australians now work in air-conditioned comfort. Competition for work and wages has been replaced by competition for that most characteristic of Sydney fixations: harbour views. How did this transformation occur?

The development of the Barangaroo precinct

The precinct now known as Barangaroo is about 22 hectares in extent. It has been divided into three separate areas. Running from the south to the north, they are Barangaroo South, Central Barangaroo and…

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 Crown Sydney Property v Barangaroo Delivery Authority; Lendl...

Details

AGLC: Crown Sydney Property v Barangaroo Delivery Authority; Lendlease (Millers Point) v Barangaroo Delivery Authority [2018] NSWSC 1931
Case: [2018] NSWSC 1931
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case before the court involved two parties, Crown Sydney Property and Lendlease (Millers Point) (the plaintiffs), and the Barangaroo Delivery Authority (the defendant). The dispute centred on the interpretation and enforcement of certain contractual obligations related to the protection of sight lines between existing and planned developments and iconic landmarks such as the Sydney Harbour Bridge and the Sydney Opera House. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues that the court had to address were the interpretation of the "application" provision within the Sight Lines Clauses and the scope of the defendant's obligation to negotiate in good faith. The plaintiffs contended that the defendant's submission of an application that proposed development inconsistent with the approved Concept Plan triggered the Sight Lines Clauses. They further argued that the defendant's negotiation process did not comply with the contractual requirements, as it did not commence from the premise that the sight lines were to be retained.

In its reasoning, the court examined the terms of the contract and concluded that the defendant's obligation to negotiate in good faith was indeed activated by the submission of an application proposing a development different from the approved Concept Plan. The court further determined that the negotiation process must commence from the position that the sight lines are to be retained. The defendant's failure to adhere to this requirement meant that they had not complied with their contractual obligations. Consequently, the court issued declarations to the effect that the defendant had breached the contract by not negotiating in good faith and by not commencing negotiations from the premise that the sight lines were to be retained.

Orders