Hagerty v Hills Central Pty Ltd - [2018] NSWCA 200

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Hagerty v Hills Central Pty Ltd [2018] NSWCA 200
Hearing dates: 31 August 2018
Decision date: 11 September 2018
Before: McColl JA at [1];
Macfarlan JA at [2];
Leeming JA at [3]
Decision:
1. Appeal allowed.

2. Set aside the judgment and orders of the Court below dated 31 May 2018 and 18 July 2018.

3. Caveats AK6322973 and AM951778 be removed from the register held under the Real Property Act 1900 (NSW).
4. The respondent pay the appellants’ costs at first instance and in this Court.
Catchwords: REAL PROPERTY – option – whether option validly exercised – option deed required provision of contract for sale of land with time for completion 42 days thereafter – respondent purportedly exercised option – respondent's executed contract for sale left date of completion blank – respondent's covering letter requested appellants insert a completion date of 192 days from date of contract – consideration of applicable principles in such cases – proper construction of option deed – whether documents purporting to exercise option complied with option deed – option not validly exercised – appeal allowed
Legislation Cited: Real Property Act 1900 (NSW)
Cases Cited: Ballas v Theophilos [No 2] (1957) 98 CLR 193; [1957] HCA 90
Bell Bros Pty Ltd & Stewart v Sarich [1971] WAR 157
Boreland v Docker [2007] NSWCA 94; (2007) NSW ConvR 56-182
Bowman v Durham Holdings Pty Ltd (1973) 131 CLR 8; [1973] HCA 55
Carter v Hyde (1923) 33 CLR 115; [1923] HCA 36
Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20; [1952] HCA 26
Comdox v Robins [2009] NSWSC 367
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12
Fatimi Pty Ltd v Bryant [2002] NSWSC 750
George v Cluning (1979) 28 ALR 57
Hills Central Pty Limited v Hagerty [2018] NSWSC 789
Hills Central Pty Limited v Hagerty (No 2) [2018] NSWSC 1109
Hinds v Randell (1961) 177 EG 733
Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85
Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673
Quadling v Robinson (1976) 137 CLR 192; [1976] HCA 31
Tonitto v Bassal (1992) 28 NSWLR 564
Whitegum Petroleum Pty Ltd v Bernadini Pty Ltd [2010] WASCA 229
William Brandt’s Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454
Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 WLR 277
Texts Cited: None
Category: Principal judgment
Parties: Anthony Gerard Hagerty & Catherine Elizabeth Hagerty as Executors of the Estate of the late Gladys Delores Hagerty (Appellants)
Hills Central Pty Ltd (Respondent)
Representation:
Counsel:

G Farland and M Keene (Appellants)
M Ashhurst SC and G P Gee (Respondent)

Solicitors:
Lamrocks Solicitors (Appellants)

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: [2018] NSWCA 200
Decision Date: 11 September 2018

CaseChat Overview and Summary

In *Hagerty v Hills Central Pty Ltd*, the New South Wales Court of Appeal considered a dispute concerning the validity of an option to purchase land. The appellants, Hagerty, were the registered proprietors of the land, and the respondent, Hills Central Pty Ltd, sought to exercise an option to purchase it. The core of the dispute revolved around whether Hills Central Pty Ltd had validly exercised the option according to the terms of the option deed.

The central legal issue before the Court of Appeal was whether the documents provided by Hills Central Pty Ltd in purported exercise of the option complied with the requirements of the option deed. Specifically, the deed stipulated that the exercise of the option required the provision of a contract for sale of land with a time for completion set at 42 days thereafter. Hills Central Pty Ltd's executed contract for sale left the completion date blank, and a covering letter requested the appellants insert a completion date of 192 days from the date of the contract. The Court had to determine the proper construction of the option deed and whether the documents provided met its conditions.

The Court of Appeal found that the option had not been validly exercised. Applying principles of contractual construction, the Court held that the requirement for a specified completion date of 42 days was a material term of the option deed. The provision of a contract with a blank completion date, coupled with a request for a significantly different completion period, meant that the respondent had failed to comply with the essential terms for exercising the option. Consequently, the appeal was allowed, the judgment of the court below was set aside, and orders were made for the removal of caveats lodged by the respondent, with the respondent ordered to pay the appellants' costs.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the judgment and orders of the Court below dated 31 May 2018 and 18 July 2018.

3. Caveats AK6322973 and AM951778 be removed from the register held under the Real Property Act 1900 (NSW).

4. The respondent pay the appellants’ costs at first instance and in this Court.

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.

Medium Neutral Citation:	Hagerty v Hills Central Pty Ltd [2018] NSWCA 200
Hearing dates:	31 August 2018
Decision date:	11 September 2018
Before:	McColl JA at [1]; Macfarlan JA at [2]; Leeming JA at [3]
Decision:	1. Appeal allowed. 2. Set aside the judgment and orders of the Court below dated 31 May 2018 and 18 July 2018. 3. Caveats AK6322973 and AM951778 be removed from the register held under the Real Property Act 1900 (NSW). 4. The respondent pay the appellants’ costs at first instance and in this Court.
Catchwords:	REAL PROPERTY – option – whether option validly exercised – option deed required provision of contract for sale of land with time for completion 42 days thereafter – respondent purportedly exercised option – respondent's executed contract for sale left date of completion blank – respondent's covering letter requested appellants insert a completion date of 192 days from date of contract – consideration of applicable principles in such cases – proper construction of option deed – whether documents purporting to exercise option complied with option deed – option not validly exercised – appeal allowed
Legislation Cited:	Real Property Act 1900 (NSW)
Cases Cited:	Ballas v Theophilos [No 2] (1957) 98 CLR 193; [1957] HCA 90 Bell Bros Pty Ltd & Stewart v Sarich [1971] WAR 157 Boreland v Docker [2007] NSWCA 94; (2007) NSW ConvR 56-182 Bowman v Durham Holdings Pty Ltd (1973) 131 CLR 8; [1973] HCA 55 Carter v Hyde (1923) 33 CLR 115; [1923] HCA 36 Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20; [1952] HCA 26 Comdox v Robins [2009] NSWSC 367 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12 Fatimi Pty Ltd v Bryant [2002] NSWSC 750 George v Cluning (1979) 28 ALR 57 Hills Central Pty Limited v Hagerty [2018] NSWSC 789 Hills Central Pty Limited v Hagerty (No 2) [2018] NSWSC 1109 Hinds v Randell (1961) 177 EG 733 Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 Phillips Fox (a firm) v Westgold Resources NL [2000] WASCA 85 Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 Quadling v Robinson (1976) 137 CLR 192; [1976] HCA 31 Tonitto v Bassal (1992) 28 NSWLR 564 Whitegum Petroleum Pty Ltd v Bernadini Pty Ltd [2010] WASCA 229 William Brandt’s Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454 Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 WLR 277
Texts Cited:	None
Category:	Principal judgment
Parties:	Anthony Gerard Hagerty & Catherine Elizabeth Hagerty as Executors of the Estate of the late Gladys Delores Hagerty (Appellants) Hills Central Pty Ltd (Respondent)
Representation:	Counsel: G Farland and M Keene (Appellants) M Ashhurst SC and G P Gee (Respondent) Solicitors: Lamrocks Solicitors (Appellants)