HELSBY -v- CONDOR DEVELOPMENTS PTY LTD [2008] WASC 264

Link to Appeal :

[2010] WASCA 16

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 264
Case No:	CIV:1666/2008	Heard:	28 OCTOBER 2008
Coram:	TEMPLEMAN J	Delivered:	19/11/08
No of pages:	20	Judgment Part:	1 of 1
Result:	Defendant's termination without legal effect
Category:	A
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Parties:	ALAN BERNARD HELSBY VANESSA ERIN PROSSER CONDOR DEVELOPMENTS PTY LTD (ACN 105 199 880)
Catchwords:	Contract Sale of strata units off the plan Vendor developer of project Settlement when project completed Various conditions essential to project Agreed time by which all conditions are due Conditions occur according to timetable of events Automatic termination if some conditions not satisfied on time Termination clause for developer if in developer's opinion the project is not viable Developer to consider viability before last condition due to be satisfied Continuation of project and contract of sale after time for automatic termination Other conditions not capable of being satisfied due to effluxion of time Developer purports to terminate on viability grounds Consistent interpretation of terms throughout the contract Whether waiver of exercise of termination clause
Legislation:	Strata Titles Act 1985 (WA), s 70
Case References:	Badat v DTZ Australia (WA) Pty Ltd [2008] WASCA 83 Bellmere Park Pty Ltd v Benson [2007] QCA 102 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : HELSBY -v- CONDOR DEVELOPMENTS PTY LTD [2008] WASC 264 CORAM : TEMPLEMAN J HEARD : 28 OCTOBER 2008 DELIVERED : 20 NOVEMBER 2008 FILE NO/S : CIV 1666 of 2008 BETWEEN : ALAN BERNARD HELSBY

VANESSA ERIN PROSSER

Plaintiffs

AND

CONDOR DEVELOPMENTS PTY LTD (ACN 105 199 880)

Defendant

Catchwords:

Contract - Sale of strata units off the plan - Vendor developer of project - Settlement when project completed - Various conditions essential to project - Agreed time by which all conditions are due - Conditions occur according to timetable of events - Automatic termination if some conditions not satisfied on time - Termination clause for developer if in developer's opinion the project is not viable - Developer to consider viability before last condition due to be satisfied - Continuation of project and contract of sale after time for automatic termination - Other conditions not capable of being satisfied due to effluxion of time - Developer purports to terminate on viability grounds - Consistent interpretation of terms throughout the contract - Whether waiver of exercise of termination clause

(Page 2)

Legislation:

Strata Titles Act 1985 (WA), s 70

Result:

Defendant's termination without legal effect

Category: A

Representation:

Counsel:

Plaintiffs : Mr P G McGowan

Defendant : Mr S OwenConway QC & Mr D K Barker

Solicitors:

Plaintiffs : Butcher Paull & Calder

Defendant : Chalmers Legal Studio Pty Ltd

Case(s) referred to in judgment(s):

Badat v DTZ Australia (WA) Pty Ltd [2008] WASCA 83
Bellmere Park Pty Ltd v Benson [2007] QCA 102

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.

Continue reading Helsby v Condor Developments Pty Ltd

Details

AGLC: Helsby v Condor Developments Pty Ltd [2008] WASC 264
Case: [2008] WASC 264
Decision Date: 20 NOVEMBER 2008

CaseChat Overview and Summary

In the case of Helsby v Condor Developments Pty Ltd, the purchaser of a strata unit, Mr. Helsby, sought a declaration that the developer's termination of the contract of sale was invalid and sought an order for specific performance. The dispute centred on the sale of a strata unit in a project developed by Condor Developments Pty Ltd. The sale was conditional upon the completion of the project and the satisfaction of various conditions within a stipulated timeframe. A critical aspect of the contract was the automatic termination clause, which stipulated that if certain conditions were not met by a specified date, the contract would terminate. Additionally, the developer had the right to terminate the contract if, in its opinion, the project was not viable.

The court was tasked with determining whether the developer's termination of the contract was valid and, if not, whether Mr. Helsby was entitled to specific performance. The central legal issue was the interpretation and application of the termination clauses in the contract, particularly in light of the developer's decision to terminate on the grounds of project viability. The court considered whether the developer's actions were consistent with the contract's terms and whether the developer had waived its right to terminate under the automatic termination clause.

The court concluded that the developer's termination was without legal effect. It found that the developer had not acted in accordance with the contract's terms and had waived the right to terminate under the automatic termination clause. The court held that the developer's decision to terminate on viability grounds was inconsistent with the contract's conditions, as other conditions remained unsatisfied due to the passage of time rather than any fault of the purchaser. The court also found that the developer's actions were inconsistent with the contract's terms and that the developer had waived its right to terminate under the automatic termination clause.

The court ordered that the developer's termination of the contract was without legal effect. It further ordered that Mr. Helsby was entitled to specific performance, meaning that the developer was required to complete the project and transfer the strata unit to Mr. Helsby as per the original terms of the contract.

Orders

Orders of the court

Defendant's termination without legal effect

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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