Goldtaper P/L v Berela Ltd - [2001] QCA 564

SUPREME COURT OF QUEENSLAND

CITATION: Goldtaper P/L & Ors v Berela Ltd [2001] QCA 564

PARTIES: GOLDTAPER PTY LTD (ACN 010 588 815)
(subject to a Deed of Company Arrangement)
(first plaintiff/first respondent)
HARACLIFF PTY LTD (ACN 010 820 809)
(second plaintiff/second respondent)
KEMBROOK PTY LTD (ACN 010 839 933)
(third plaintiff/third respondent)
v
BERELA LIMITED (ACN 010 671 315)
(defendant/appellant)

FILE NO/S: Appeal No 3540 of 2001
SC No 10989 of 1998

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 14 December 2001

DELIVERED AT: Brisbane

HEARING DATE: 11 October 2001

JUDGES: Davies and Thomas JJA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal dismissed with costs

CATCHWORDS: CONTRACT - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS - TERMS ESSENTIAL TO ENABLE PERFORMANCE - where contract for sale of land to builder developer - external road works required for proposed development - negotiations for sale of land conducted in context that contribution to external road works may be imposed by council on a per lot basis - where special conditions in contract acknowledging that relaxation of previously proposed amount for road contribution may be sought and providing for that event - where clause premised only upon vendors' success in negotiation relaxation - where purchaser in fact negotiated the relaxation - where competing constructions placed upon clause intended to avoid occurrence of windfall profit to purchaser - where factual context accordingly relevant to proper construction of the clause - where application by purchaser for relaxation prevented vendors from performing part of the contract - whether implied term that relaxation be obtained within a fixed time - whether breach of fundamental implied term that neither party will do anything to prevent the other from performing the contract

CONTRACT - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - OTHER MATTERS - where factual context relevant to proper construction of contract

CONTRACT - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - OTHER MATTERS - breach of fundamental implied term

Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, referred to
Marshall v Colonial Bank of Australia (1904) 1 CLR 632, referred to
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 569, applied

COUNSEL: P D McMurdo QC for appellant
J Bell QC, with J D McKenna for respondents

SOLICITORS: Corrs Chambers Westgarth for appellant
Hopgood Ganim Lawyers for respondents

DAVIES JA:

1.The questions in issue

This is an appeal from a judgment in the Trial Division of this Court for damages for breach of a contract for sale of land. The appellant, the unsuccessful defendant, was the purchaser of the land and the respondents, the successful plaintiffs, were the vendors. The damages were for breach of the fundamental term implied in all contracts that…

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: [2001] QCA 564
Decision Date: 14 December 2001

CaseChat Overview and Summary

The dispute between Goldtaper P/L and Berela Ltd involved a contract for the sale of land to a builder developer, with particular focus on the requirements for external road works as part of the proposed development. The negotiation for the sale of the land took place in a context where contributions to external road works could potentially be imposed by the council on a per lot basis. The contract included special conditions acknowledging that the amount for the road contribution might be relaxed and provided for this eventuality. The central issue was whether an implied term existed that required the relaxation to be obtained within a set timeframe and whether the purchaser's actions constituted a breach of the fundamental implied term that neither party would do anything to prevent the other from performing the contract.

The court was required to decide on the proper construction of the clause that acknowledged the potential relaxation of the road contribution amount. The clause was premised only upon the success of the vendors in negotiating the relaxation. However, it was the purchaser who actually negotiated the relaxation. The court had to consider competing constructions of the clause, which aimed to avoid a windfall profit for the purchaser, and determine the relevance of the factual context to the proper construction of the clause. Additionally, the court had to assess whether the purchaser's application for relaxation prevented the vendors from performing part of the contract, and if such an action constituted a breach of the fundamental implied term.

The court found that the factual context was indeed relevant to the proper construction of the clause. It held that the clause was intended to avoid the occurrence of a windfall profit for the purchaser. The court also determined that the purchaser's actions in applying for the relaxation did prevent the vendors from performing part of the contract, which constituted a breach of the fundamental implied term. The appeal by Goldtaper P/L was dismissed, with costs awarded against them. The court's reasoning was based on the interpretation of the contract and the application of the principles of contract law, particularly the fundamental implied term that neither party will do anything to prevent the other from performing the contract.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Goldtaper P/L & Ors v Berela Ltd [2001] QCA 564
PARTIES:	GOLDTAPER PTY LTD (ACN 010 588 815) (subject to a Deed of Company Arrangement) (first plaintiff/first respondent) HARACLIFF PTY LTD (ACN 010 820 809) (second plaintiff/second respondent) KEMBROOK PTY LTD (ACN 010 839 933) (third plaintiff/third respondent) v BERELA LIMITED (ACN 010 671 315) (defendant/appellant)
FILE NO/S:	Appeal No 3540 of 2001 SC No 10989 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 December 2001
DELIVERED AT:	Brisbane
HEARING DATE:	11 October 2001
JUDGES:	Davies and Thomas JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	CONTRACT - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS - TERMS ESSENTIAL TO ENABLE PERFORMANCE - where contract for sale of land to builder developer - external road works required for proposed development - negotiations for sale of land conducted in context that contribution to external road works may be imposed by council on a per lot basis - where special conditions in contract acknowledging that relaxation of previously proposed amount for road contribution may be sought and providing for that event - where clause premised only upon vendors' success in negotiation relaxation - where purchaser in fact negotiated the relaxation - where competing constructions placed upon clause intended to avoid occurrence of windfall profit to purchaser - where factual context accordingly relevant to proper construction of the clause - where application by purchaser for relaxation prevented vendors from performing part of the contract - whether implied term that relaxation be obtained within a fixed time - whether breach of fundamental implied term that neither party will do anything to prevent the other from performing the contract CONTRACT - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - OTHER MATTERS - where factual context relevant to proper construction of contract CONTRACT - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - OTHER MATTERS - breach of fundamental implied term Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, referred to Marshall v Colonial Bank of Australia (1904) 1 CLR 632, referred to Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 569, applied
COUNSEL:	P D McMurdo QC for appellant J Bell QC, with J D McKenna for respondents
SOLICITORS:	Corrs Chambers Westgarth for appellant Hopgood Ganim Lawyers for respondents