NEW SOUTH WALES SUPREME COURT
CITATION: Hawkesbury City Council v Grewlan Investments Pty Ltd [2007] NSWSC 1376
JURISDICTION: Equity
FILE NUMBER(S): 6071/06
HEARING DATE{S): 27 & 30 April, 4 & 15 May, 9 & 23 October 2007
JUDGMENT DATE: 29 November 2007
PARTIES:
Hawkesbury City Council (P)
Grewlan Investments Pty Limited (D)
JUDGMENT OF: Hamilton J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
M R Gracie (P)
M J Slattery QC and P T Newton (D)
SOLICITORS:
A R Walmsley & Co (P)
JP Lawyers (D)
CATCHWORDS:
EQUITY [76] – General principles – Mistake – Equitable relief in case of mistake – Rectification – Generally - Necessity for mutual mistake – Necessity to show common intention with which document executed - ESTOPPEL [34] - Estoppel in pais – Equitable estoppel – Other matters – Defendant represents to plaintiff Council that if parties enter into deed under which Council will organise construction of road giving access to allotments including land of the defendant, defendant will not claim compensation for land dedicated to Council – Defendant estopped from claiming compensation for dedicated land.
LEGISLATION CITED:
Fair Trading Act 1987 s 42
Trade Practices Act 1974 (Cth) ss 52, 80, 87
CASES CITED:
ACCC v Real Estate Institute of WA Inc (1999) 95 FCR 114
ACCC v Z-Tek Computer Pty Ltd (1997) 78 FCR 197
Bush v National Australia Bank Ltd (1992) 35 NSWLR 390
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
DTR Securities Pty Ltd v Sutherland Shire Council (1993) 79 LGERA 88
Equity Access Pty Ltd v Westpac Banking Corporation (1990) ATPR 40-994
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Pty Ltd (1978) 140 CLR 216
In re Preston [1985] AC 835
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477
Smith v Smith (now Vocalan) (2004) 12 BPR 23,051
Taylor v Johnson (1983) 151 CLR 422
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394
Vitol SA v Esso Australia Ltd (The “Wise”) [1989] 2 Lloyd’s Rep 451
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Yorke v Lucas (1985) 158 CLR 661
Handley, Estoppel by Conduct and Election (2005) [3-001], [3-007], [3-012]
Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (4th ed, 2002) at [17-110], [17-115]
Miller’s Annotated Trade Practices Act (28th ed, 2007) [1.52.35], [1.52.53], [1.80.16]
Spencer Bower, The Law Relating to Estoppel by Representation (4th ed, 2004) [III.4.1], [XIV.2.12-14]
DECISION:
Defendant estopped and restrained from pursuing claim for compensation.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
THURSDAY, 29 NOVEMBER 2007
6071/06HAWKESBURY CITY COUNCIL v GREWLAN INVESTMENTS PTY LIMITED
JUDGMENT
HIS HONOUR: The subject matter of these proceedings is whether the defendant is precluded from seeking compensation from the plaintiff in respect of part of the land known as 286 Windsor Road…
Continue reading Hawkesbury City Council v Grewlan Investments Pty Ltd
Sign in free to access the full text
- AGLC
- Hawkesbury City Council v Grewlan Investments Pty Ltd [2007] NSWSC 1376
- Case
- [2007] NSWSC 1376
- Decision Date
CaseChat Overview and Summary
The court examined whether Mr DeMarco's conduct constituted a misleading or deceptive representation. The court rejected Grewlan's argument that the conduct was not misleading or deceptive, finding that the representation was clear and that Grewlan was estopped from claiming compensation. The court noted that Grewlan's objection to and deletion of a clause that would have precluded a compensation claim did not negate the representation made by Mr DeMarco. Furthermore, the court held that the representation was a statement of Grewlan's state of mind at the time, which bound Grewlan to its terms. The court also dismissed Grewlan's argument that the representation was not within trade or commerce and therefore not subject to statutory relief.
The court concluded that Grewlan was estopped from claiming compensation for the dedicated land. The representation made by Mr DeMarco was clear and unequivocal, and Grewlan was bound by it. The court found that rectification was not necessary as there was no mutual mistake, and Grewlan was not entitled to rely on the absence of a mutual mistake to avoid the estoppel. The court held that the estoppel was based on the representation made by Mr DeMarco and the Council's reliance on it. The court's decision was based on the principle that a party cannot be allowed to rely on a mistake if the other party is aware of the mistake and deliberately sets out to ensure that the mistaken party does not become aware of the mistake.
Orders
Orders of the court
Full text does not contain this section.
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
The defendant submitted that Mr DeMarco’s conduct in making the oral representations was not misleading or deceptive in the circumstances of the case and referred to Equity Access Pty Ltd v Westpac Banking Corporation (1990) ATPR 40-994 at 50,950. The defendant submitted that the statement made by Mr DeMarco was no more than a statement of the defendant’s state of mind at that time and was not a representation that the defendant would not make a compensation claim in the future. The defendant also submitted that the relevant conduct was not “in trade or commerce” and that there was therefore no contravention of the statutes and that the plaintiff is not entitled to any form of relief under them. That the deed ought be rectified by including the excised cl 16 or a clause to the effect that the defendant would not seek compensation for the cut off portion. The plaintiff initially submitted that the defendant, by Mr DeMarco, and the plaintiff, by Mr Daley, had an actual common intention, at the time of execution of the deed, that the defendant not be permitted to make a compensation claim and that rectification of a deed is usually made in such a circumstance and referred to Bush v National Australia Bank Ltd (1992) 35 NSWLR 390. The plaintiff submitted that the precise words required to rectify the deed can be ascertained because they were set out in the deleted cl 16. The defendant submitted that it did not share any intention the plaintiff might have had to include a term in the deed that precluded a compensation claim. The defendant submitted that the strongest evidence of the defendant’s intention was its objection to and deletion of recital G and cl 16 from the deed. The defendant also submitted that, whether or not it did not intend to include such a term in the deed, it did not intend to waive any entitlement it might have to compensation, because, at its highest, Mr DeMarco’s statement in his telephone conversation with Mr Daley was a statement as to the defendant’s intention at that time, but not at all future times. The plaintiff later referred to Smith v Smith (now Vocalan) (2004) 12 BPR 23,051 in which Barrett J at [48], [50] adverted to situations in which rectification of a unilateral mistake is permissible if the party not under the misapprehension is guilty of fraud, whether actual, constructive or equitable, as follows:“[48]In the case of unilateral mistake, where the actuating misapprehension is said to have operated upon one party but not the other, rectification is generally not permissible. There is, however, an exception where the party not under the misapprehension is guilty of fraud, whether actual, constructive or equitable. The relevant principle was stated by Mason ACJ, Murphy and Deane JJ in Taylor v Johnson (1983) 151 CLR 422 at 432-433 as follows:‘The particular proposition of law which we see as appropriate and adequate for disposing of the present appeal may be narrowly stated. It is that a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension. ... In such a situation it is unfair that the mistaken party should be held to the written contract by the other party whose lack of precise knowledge of the first party’s actual mistake proceeds from wilful ignorance because, knowing or having reason to know that there is some mistake or misapprehension, he engages deliberately in a course of conduct which is designed to inhibit discovery of it.’…….[50]The cases to which I have referred were cases in which equitable remedy by way of rescission or rectification was granted to redress unconscionability emerging from or founded on unilateral mistake. There is no reason why other equitable remedies should not be available where the elements justifying relief exist. The essential elements are, first, that one person enters into a contract under a very serious mistake about its content in relation to a fundamental matter; second, that the other party is aware that circumstances exist indicating that the first person is entering into a contract under a serious mistake about the content or subject matter of that aspect of the contract; and, third, that the second party deliberately sets out to ensure that the first party does not become aware of the existence of the mistake, either by positive acts or omitting to bring it to their attention.”