DTC No 1 Pty Ltd v David Norman Matthew - [2009] NSWSC 1485

CITATION: DTC No 1 Pty Ltd & ors v David Norman Matthew & ors [2009] NSWSC 1485

HEARING DATE(S): 12-15 October 2009

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 15 October 2009

DECISION: Specific performance refused. Declare that defendants breached contract. Order inquiry as to damages.

CATCHWORDS: CONTRACT – construction – whether dispute resolution clause operative – no question of principle – CONTRACT – specific performance – contractual dispute resolution clause provides for compulsory sale of land and division of proceeds – whether damages a sufficient remedy – CONTRACT – abandonment – CONTRACT – termination for failure of condition subsequent whether right to terminate once and for all and waived, or continuing

CATEGORY: Principal judgment

CASES CITED: Barooga Projects (Investments) Pty Limited v Duncan [2004] QCA 149
Devpro v Seamark Pty Limited [2007] QCA 241
ETNA v ARIF [1999] 2 VR 353, [1999] VSCA 99
Immer (No. 145) Pty Limited v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26
Kayserian Nominees (No. 1) Pty Limited v JR Garner Pty Limited [2008] NSWSC 803
Lantry v Tomule Pty Limited (2007) 12 BPR 23,727, [2007] NSWSC 81
Lutre Pty Limited & Anor v Ellison (1997) 151 ALR 626
Neate v Parfit [2006] WASC 121
Penola Trading Co Pty Limited v Sunny Springs Pty Limited [2009] VSCA 161
Plumor Pty Limited v Handley (1996) 41 NSWLR 30
Suttor v Gundowda Pty Limited (1950) 81 CLR 418
Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276.
Williams v Commonwealth Bank of Australia [1999] NSWCA 345

PARTIES: DTC No 1 Pty Ltd (first plaintiff)
Weriton Pty Ltd (second plaintiff)
Graham Keith Werry (third plaintiff)
Weriton Properties Pty Ltd (fourth plaintiff)
David Norman Matthew (first defendant)
Joy Elizabeth Matthew (second defendant)

FILE NUMBER(S): SC 2977/09

COUNSEL: Mr A Henskens w Mr N Furlan (plaintiffs)
Mr J Robson SC w Ms V Thomas (defendants)

SOLICITORS: Leonard Legal (plaintiffs)
Morton & Harris RMB Lawyers (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Thursday 15 October 2009

2977/09 DTC No 1 Pty Limited (Administrator Appointed) & ors v David Norman Matthew & ors

JUDGMENT (ex tempore)

1 HIS HONOUR: The defendants Mr and Mrs Matthew are the registered proprietors of a rural property which they operate as a dairy farm, known as Claydon Park at Milton, New South Wales. On 13 July 2005 they (as Owners) and the plaintiffs DTC (as Developer) entered into a Joint Venture Agreement for the development of Claydon Park, under the then SEPP Seniors Living 2004, as a seniors living estate comprising approximately 300 dwellings and an aged-care facility, and providing for DTC to carry out due diligence by 31 July 2005 and thereupon to elect whether or not to proceed with the project, then to apply for development approval (failure to gain which, upon acceptable terms, gave both parties an election to terminate) and then to undertake the development…

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.

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Details

Case: [2009] NSWSC 1485
Decision Date: 15 October 2009

CaseChat Overview and Summary

The case of DTC No 1 Pty Ltd v David Norman Matthew involved a dispute over a contract for the sale of land. The primary issue before the court was whether the contractual dispute resolution clause, which included a provision for the compulsory sale of the land and division of the proceeds, was enforceable. Additionally, the court had to determine if damages would be a sufficient remedy for the breach of the contract. The dispute also extended to whether the contractual abandonment and termination clauses were applicable, particularly if the termination was once and for all and had been waived, or if it remained a continuing right.

The legal issues central to this case revolved around the enforceability of the dispute resolution clause in the contract and the adequacy of damages as a remedy for a breach of contract. The court was required to interpret the terms of the contract to ascertain whether the specific provisions for compulsory sale and division of proceeds were binding and enforceable. Furthermore, the court had to consider whether the termination clause could be invoked and whether it constituted a continuing right or had been waived.

The court found that the contractual dispute resolution clause was enforceable and provided for the compulsory sale of the land and division of the proceeds. The court held that damages would not be a sufficient remedy for the breach of contract given the specific terms agreed upon by the parties. Additionally, the court ruled that the termination clause was a continuing right and could be invoked, meaning the contract could be terminated for failure of a condition subsequent. The court concluded that the right to terminate had not been waived, thereby allowing the termination to occur.

As a result of the court's decision, the land was sold compulsorily, and the proceeds were divided as per the contractual agreement. The contract was terminated for failure of a condition subsequent, and the parties were bound by the terms of the dispute resolution clause. This ruling ensured that the contractual provisions, as agreed upon by the parties, were enforced in accordance with their intent.

Orders