Excel Quarries Pty Ltd v Payne - [1996] QCA 17

IN THE COURT OF APPEAL	[1996] QCA 017
SUPREME COURT OF QUEENSLAND

Appeal No. 121 of 1995

Brisbane

[Excel Quarries P/L v. Payne]

BETWEEN:

EXCEL QUARRIES PTY LTD

(Plaintiff) Appellant

AND:

BRENDA CORAL PAYNE

(Defendant) Respondent
Pincus JA
McPherson JA
Thomas J

Judgment delivered 16 February 1996

Separate concurring reasons by Pincus JA and Thomas J; McPherson JA dissenting

APPEAL DISMISSED WITH COSTS

CATCHWORDS:	CONTRACTS - agreement to grant lease - construction - excision of absurdity - condition requiring consent of Council for rezoning to extractive industry - consent obtained for rezoning of part only of the land - whether condition satisfied - whether condition solely for benefit of lessee - whether lessor could unilaterally waive need for satisfaction of condition - Sandra Investments Pty Ltd v. Booth (1982) 152 CLR 153 discussed - whether condition precedent - question of election waiver - Newmont Pty Ltd v. Laverton Nicol NL & Ors (1982) 57 A.L.J.R. 348 distinguished - whether estoppel or affirmation shown.
Counsel:	Mr P Keane QC with him Mr P O'Shea for the Appellant Mr R Hanson QC with him Mr R Derrington for the Respondent
Solicitors:	Hunt & Hunt for the Appellant Connor O'Meara McConaghy for the Respondent

Hearing Date: 29 November 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 121 of 1995

Brisbane

Before Pincus JA

McPherson JA
Thomas J

[Excel Quarries P/L v. Payne]

BETWEEN:

EXCEL QUARRIES PTY LTD

(Plaintiff) Appellant

AND:

BRENDA CORAL PAYNE

(Defendant) Respondent

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal. No. 121 of 1995

Brisbane

Before

Pincus J.A.
McPherson J.A.
Thomas J.

[Excel Quarries P/L. v. Payne]

BETWEEN

EXCEL QUARRIES PTY LTD

(Plaintiff) Appellant

AND

BRENDA CORAL PAYNE

(Defendant) Respondent

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No. 121 of 1995.

Brisbane

Before

Pincus J.A.
McPherson J.A.
Thomas J.

[Excel Quarries P/L v. Payne]

BETWEEN:

EXCEL QUARRIES PTY LTD

(Plaintiff) Appellant

AND:

BRENDA CORAL PAYNE

(Defendant) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 16/02/1996

The facts and issues in this appeal are explained in the reasons of McPherson JA.

The parties to the agreement in question agreed that certain land would be leased, the lease to begin on a date fixed by reference to the last date of fulfilment of three conditions set out in cl. 2. The first of those conditions is rezoning of the land to "Extractive Industry", the second a feasibility study and the third may be, as explained by McPherson JA, ignored.

The essential point of the case is the effect on the parties’ obligations of what has happened with the rezoning, the first condition in cl. 2. What has been obtained is a rezoning of about half the land to the designated zone (Extractive Industry); the rest has been rezoned to a different zone (Special Facilities). The appellant says that despite this (on the face of it), failure of…

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: [1996] QCA 17
Decision Date: 16/02/1996

CaseChat Overview and Summary

Excel Quarries Pty Ltd brought an action against Payne, seeking a declaration that a condition in an agreement to grant a lease had been satisfied. The agreement stipulated that the condition for the grant of the lease was the rezoning of the land to an extractive industry, subject to obtaining the consent of the relevant council. The parties disputed whether the condition was satisfied when the consent was obtained for rezoning only part of the land. The case was heard in the Supreme Court of Victoria.

The primary legal issue was whether the condition requiring consent for rezoning to an extractive industry had been satisfied. A secondary issue was whether the condition was solely for the benefit of the lessee, and if so, whether the lessor could unilaterally waive the need for satisfaction of the condition. The court also had to determine whether the condition was a condition precedent, and if so, whether the lessor had elected to waive the condition.

The court found that the condition had not been satisfied because the consent obtained was only for rezoning a portion of the land, not the entire land as required by the agreement. The court held that the condition was not solely for the benefit of the lessee, and thus the lessor could not unilaterally waive it. The court rejected the argument that the condition was a condition precedent, and therefore, there was no question of election or waiver. The court found no estoppel or affirmation shown by the lessor.

The court ruled in favour of Payne, declaring that the condition in the agreement had not been satisfied. The court found that Excel Quarries was not entitled to a declaration that the condition had been satisfied and dismissed the case with costs.

Orders