IDP 971 Richmond Pty Ltd v Xerri

Case •

[2025] NSWSC 1151

•

02 October 2025

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: IDP 971 Richmond Pty Ltd v Xerri [2025] NSWSC 1151
Hearing dates: 18 September 2025
Date of orders: 2 October 2025
Decision date: 02 October 2025
Jurisdiction:Equity - Real Property List
Before: Pike J
Decision:

Amended summons dismissed. Plaintiff to pay defendants’ costs of the proceedings.

Catchwords:

CONTRACTS – Rectification – Common intention – Proof of common intention – where clause of option deed allowed for a per square meter price reduction for sale of land – alleged common mistake as to drafting of that clause – whether clear and convincing proof of common intention – no question of principle

Legislation Cited:

Land Acquisition (Just Terms Acquisition) Act 1991 (NSW)

State Environmental Planning Policy (Precincts – Central River City) 2021

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, s 7

Cases Cited:

Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329

Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407

Newey v Westpac Banking Corporation [2014] NSWCA 319

Public Trustee v Smith [2008] NSWSC 397

Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65

Simic v NSW Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47

Texts Cited:

Nil

Category:Principal judgment
Parties: IDP 971 Richmond Pty Ltd (Plaintiff)
Jerry Xerri (First Defendant)
Emanuela Xerri (Second Defendant)
Representation:

Counsel:
P T Lynch SC / P Wiggins (Plaintiff)
J C Kelly SC / A Maroya (Defendants)

Solicitors:
Sparke Helmore Lawyers (Plaintiff)
Michael Siderowitz & Co (Defendants)
File Number(s): 2025/00070272
Publication restriction: Nil

JUDGMENT

  1. The defendants are the registered proprietors of the land at X Richmond Road, Marsden Park, being Lot X in DP X (the Property).

  2. On 30 August 2018 the plaintiff (IDP 971) entered into a Deed with the defendants whereby the defendants granted an option to IDP 971 to purchase the Property for $22 million (August Option Deed).

  3. The Property is a green fields site that IDP 971 was purchasing with a view to subdividing it for residential use.

  4. The August Option Deed was terminated by IDP 971 as a result of concerns about a potential railway corridor adversely affecting the use of the Property.

  5. Negotiations took place between the solicitors for the parties, the result of which was a new option deed entered into on 10 October 2018 (October Option Deed) again for $22 million but this time with an amended clause 15.4 which provided for a reduction in purchase price in certain circumstances.

  6. IDP 971 contends that it has now been ascertained that the railway corridor reduces the area of the Property that can be developed by 8,106.1 m2 and as such the purchase price under the October Option Deed should be reduced.

  7. By these proceedings, IDP 971 seeks rectification of particularly clause 15.4 of the October Option Deed to give effect to the agreement that it says was reached regarding the circumstances in which the purchase price would be reduced, that agreement not being reflected in the terms of the October Option Deed.

  8. The defendants contend that the October Option Deed should not be rectified and further contend that even if the October Option Deed is rectified in the manner contended for by IDP 971, the purchase price should not be reduced in the amount contended for by IDP 971. This is because no rail corridor or buffer area has in fact been created.

  9. The option was exercised on 10 March 2025. The date for completion of the ensuing contract has been extended pending determination of these proceedings.

  10. The proceedings were heard on 18 September 2025. Mr P T Lynch SC and Mr P Wiggins appeared for IDP 971 and Mr J C Kelly SC and Mr A Maroya appeared for the defendants.

  11. The evidence was documentary. The one deponent of an affidavit – one of IDP 971’s current solicitors – was not required for cross-examination.

  12. For the reasons set out below, IDP 971’s claims do not succeed. I am not satisfied that IDP 971 has demonstrated that the October Option Deed should be rectified.

The Facts

  1. The relevant facts are as follows.

  2. The starting point – having regard to the present dispute – is the terms of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (2006 SEPP). Section 7 of the 2006 SEPP relevantly provided that Appendix 12 of the 2006 SEPP applied to the carrying out of development in “Marsden Park Precinct, North West Growth Centre” which included the Property.

  3. Clause 6.10 of Appendix 12 provided:

6.10   Development of land within or adjacent to public transport corridor

(1)   Consent must not be granted to development in the area marked “I” on the Land Zoning Map without the concurrence of Transport for NSW.

(2)   In determining whether to provide concurrence, Transport for NSW is to take into account the likely effect of the development on:

(a)   the practicability and cost of carrying out public transport projects on the land in the future; and

(b)   without limiting paragraph (a), the structural integrity or safety of, or ability to operate, public transport projects on the land in the future, and

(c)   without limiting paragraph (a), the land acquisition costs and the costs of construction, operation or maintenance of public transport projects on the land in the future.

  1. The area marked “I” on the Land Zoning Map includes an area, approximately 55 metres wide running through the Property where it abuts South Street.

  2. Clause 3.10 of State Environmental Planning Policy (Precincts – Central River City) 2021 (2021 SEPP) similarly picks up Appendix 11 to the 2021 SEPP which is in identical terms to clause 6.10 of Appendix 12 to the 2006 SEPP.

  3. The effect of these provisions is that council could not grant consent to the development of the area marked “I” without the concurrence of Transport for NSW (TfNSW).

  4. The August Option Deed was entered into on 30 August 2018. Pursuant to clause 3.1 of the August Option Deed, IDP 971 was granted a 30 day due diligence period. In general terms, IDP 971 had the right to terminate the August Option Deed if the results were considered unsatisfactory to IDP 971.

  5. Pursuant to clause 4, a non-refundable Call Option Fee of $4.4 million was payable in six instalments, the first instalment being due 31 days after the date of the August Option Deed.

  6. Clause 15 of the August Option Deed was in the following terms:

15.   Updates of Contract:

15.1   Updated attachment:

In the event that the Call Option has not been exercised, the Owner’s solicitor may give the Grantee’s solicitor an updated version of any attachment to the Contract.

15.2   Contract amended with updated attachment:

If the Owner’s solicitor takes the action described in clause 15.1, then, subject to clause 15.3, the Contract is taken to be the document in Schedule 3 but with any updated attachment replacing the earlier version of that attachment.

15.3   Grantee’s right of termination:

In the event that any updated attachment significantly and detrimentally affects the property, other than by virtue of a reduction in its area, then the Grantee shall have the right to terminate this Deed by written notice to the Owner delivered within fourteen (14) days of the date of receipt by the Grantee’s Solicitor of any such updated attachment, time being of the essence.

15.4   Exception to Grantee’s right of termination:

In the event that the updated attachment affects the property so as to reduce its area, then the Grantee shall not have the right to terminate this Deed in accordance with clause 15 .3 but shall be obliged to proceed with its obligations under this Deed provided that the Price for the Property is reduced to a figure calculated on an area proportionate basis and based upon a price per square metre of $773.82.

15.5   Grantee’s Notice of Termination:

In the event that the Grantee exercises its rights under clause 15.3, then the said Notice of Termination shall:

(a)   specify the updated attachment asserted to significantly and detrimentally affect the property;

(b)   specify the asserted significant and detrimental affectation on the Property of the updated attachment; and

(c)   warrant that the purported termination is as a direct result of the asserted significant and detrimental affectation on the Property of the updated attachment.

  1. On 12 September 2018, IDP 971’s lawyer (Ms Tania Kallianiotis) sent an email to the defendant’s lawyer (Mr Siderowitz) in the following terms:

I refer to the above matter.

My clients are in the course of completing their due diligence however have been advised that the owner was provided with information regarding the railway corridor that is relevant.

Would you please ask your client to provide the information/ documents they have been provided in relation to the railway corridor?

  1. Later that day, a response was received attaching extracts from two town planning reports from 2015.

  2. In the earlier of these two reports, which were commissioned in the context of an earlier road widening proposal dispute, the authors provided the following background to the proposed transport corridor:

200.   On 12 March 2012, the NSW Government announced that it ‘would secure an additional public transport corridor’ (‘PT Corridor’) through the NWGC, with two potential PT Corridor options being considered.

The two PT Corridor options were proposed to commence from Cudgegong Station (the end of the North West Rail Link (NWRL’)) (Image 29). The two PT Corridor options were:

•   Option A:   to Schofields and Marsden Park

•   Option B:   to Riverstone

…..

201.   In December 2012, the NSW Government announced that it had selected PT Corridor Option A (from the March 2012 options), to extend from Cudgegong Station to Schofields and Marsden Park (referred to as the ‘Marsden Park public transport corridor’). It was advised:

•   the PT Corridor was not part of the NWRL project; and

•   the PT Corridor would future proof the region’s public transport needs.

  1. In the later report, Mr Haskew stated:

94.   If I were advising hypothetical parties to a transaction of the site, I would advise that there are no firm details of the PT Corridor. In this regard it is unknown what form of transport will be accommodated and whether it will be above ground or below ground. In these circumstances I would advise that both Blacktown Council and Transport for NSW would require it to be free from development except landscaping and surplus at grade parking.

  1. On Friday 21 September 2018, Ms Kallianiotis emailed Mr Siderowitz in the following terms (my emphasis):

My clients are in the process of conducting their due diligence and I note that the following issues have arisen:

1.   The council meeting has been scheduled for 29 September 2018 with RMS feedback likely to take a further 30 days or longer;

2.   Our client is unable to fully ascertain the effects of the railway corridor which appears to be more likely than previously thought;

3.   In order to assess the full impact of the railway corridor my client is required to submit a Development Application;

4.   The Development Application will cost approximately $1,000,000.00;

5.   Our client intends to lodge the Development Application within 3 to 6 months;

Given the uncertainty of the railway corridor my client requests the following:

6.   The instalments noted clause 4.1.1 in subsection (a) and (b) be halved to $550,000.00 each;

7.   The outstanding deposits ($1,100,000.00) to be paid on Development Consent being granted;

8.   Clause 15.4 be amended so that after “so as to reduce its area” including “any proposal to reduce its area”. I also suggest a definition for area to be “included in this clause, area is to include any area that is proposed or actually acquired by any statutory or non-statutory authority and any corridor or buffer area that causes part of the land to be unsuitable for residential land subdivision”.

In the event that your client agrees to the above, my client will arrange for a waiver of the remaining due diligence period and payment of the $550,000.00.

  1. On Monday 24 September 2018, Ms Kallianiotis wrote again to Mr Siderowitz:

I have spoken to my client who advises that the best course of action is to divide the instalments by half with the additional 50% to be paid on da approval. By that stage the parties will have certainty as to the extent and impact of the railway corridor.

I have attached a hand amended agreement reflecting the proposed changes as per our email of 21 September 2018.

  1. The handwritten amendments to clause 15 were as follows:

  1. Amendments to clause 4 (Call Option Fee) were also proposed, changing the amount of the first two instalments from $1.1 million each to $550,000 each, and adding a new final instalment of $1.1 million seven days from the grant of development consent.

  2. Mr Siderowitz responded later on 24 September 2018 as follows:

I refer to your email of last Friday afternoon and the message left with the receptionist just now.

I confirm that I have asked that you provide me with a proposed draft amended Deed incorporating the changes your client wishes to make in readiness for a conference scheduled with my clients tomorrow at 3pm

Thanking you in anticipation for your prompt attention.

  1. On 26 September 2018, Mr Siderowitz emailed Ms Kallianiotis as follows (emphasis added in bold):

My instructions are now as follows:

1.Execution of a Deed of Variation of Call Option

2.Option period reduced to 36 months

3.Proposed amendments to cl. 15 agreed

4.Deletion of Due Diligence provisions

5.Payments in cl.4.1.1 in the sum of $550,000 to commence on exchange of Deed of Variation and then on a six monthly basis (6 in total)with a payment of $1.1 million within 7 days of development consent

6.3 year Sunset Clause re development consent

7.Grantee to provide full details of DA, lodgement within 6 months, regular updates and due diligence in pursuing DA

8.Payment of Grantors costs of $5,500 as per cl.3.8

Please seek urgent instructions.

  1. About an hour later, Ms Kallianiotis responded to Mr Siderowitz:

I have obtained instructions.

My client cannot agree to items 2, 5 and 6.

Our client has had to consider current market conditions and bank valuation issues. In addition our client is unable to control third parties such as council in the time it takes to approve the Development Application. Our client will of course do the best they can to achieve the DA as soon as possible but cannot warrant the time council will take.

Would you please ask that your client reconsider their position.

  1. On 2 October 2018, Ms Kallianiotis wrote to Mr Siderowitz:

As previous advised the results of my clients due diligence is unsatisfactory. They cannot proceed with the option agreement in its current form.

The will reconsider their position if your client agrees to proceed on the basis proposed in our email to you on 26 September 2018.

In the event that your client does not agree to the variations, please take this correspondence as notice of our clients termination of the agreement due to unsatisfactory results of-their due diligence.

  1. It appears common ground that the August Option Deed thus came to an end on 2 October 2018.

  2. The correspondence then continued with Mr Siderowitz emailing Ms Kallianiotis on 3 October 2018:

Thank you for your email of yesterday afternoon. I have left a message for you to call me earlier today but as usual, you are no doubt busy.

Would you kindly seek instructions as to whether, as a compromise, the matter could proceed on the basis that the option period remain at five (5) years but the payments in 4.1. (a) & (b) each be $825,000.00, with the remaining payments as proposed by your client.

Kindly advise at your very earliest convenience.

  1. There were then further emails on 3 October 2018. First, at 2.48 pm Ms Kallianiotis wrote to Mr Siderowitz:

I refer to your email below.

I am instructed that my client does not agree.

Our client is willing to again reiterate its offer made on 26 September 2018.

We await your instructions.

  1. At 5.04 pm, Mr Siderowitz emailed Ms Kallianiotis:

Thank you for your email.

As per the message I left for you with your receptionist earlier this afternoon, I am instructed to proceed on your client’s offer. To that end, I will commence drafting a fresh Deed, which probably will not occur until Monday, due to other commitments. In the interim, however, I would appreciate it if you would kindly provide me with relevant clauses dealing with the Development Application as previously canvassed.

Thanking you again for your co-operation in this matter.

  1. On 8 October 2018, Mr Siderowitz wrote to Ms Kallianiotis:

Further to my email dated October 3 and our telephone conversation this morning, please find attached for your consideration draft Call Option Deed.

Kindly specifically note the following amendments:

1. Definition of Call Option, substituting clause 3.1 with 5.1

2. Deletion of reference to Due Diligence

3. Insertion of new clause 3 covering the DA

4. Amendment to 4.1 with payments as now agreed

5. Amendments to 15.3 and 15.4

I await hearing from you at your very earliest convenience as I would like to get my clients in as soon as possible to sign the Deed.

  1. Relevantly, clause 15 of the draft was now in the following terms (underlining has been added to show relevant changes from existing clauses):

15.   Updates of Contract:

15.1   Updated attachment:

In the event that the Call Option has not been exercised, the Owner’s solicitor may give the Grantee’s solicitor an updated version of any attachment to the Contract.

15.2   Contract amended with updated attachment:

If the Owner’s solicitor takes the action described in clause 15.1, then, subject to clause 15.3, the Contract is taken to be the document in Schedule 3 but with any updated attachment replacing the earlier version of that attachment.

15.3   Grantee’s right of termination:

If, other than by virtue of a reduction or proposed reduction in its area, any updated attachment significantly and detrimentally affects the property, or if any portion of the property is acquired or proposed to be acquired by any statutory or non-statutory authority or if there is created any corridor or buffer area that causes any portion of the property to be unsuitable for residential land subdivision, then the Grantee shall have the right to terminate this Deed by written notice to the Owner delivered within fourteen (14) days of the date of receipt by the Grantee’s Solicitor of any such updated attachment, time being of the essence.

15.4   Exception to Grantee’s right of termination:

ln the event that any updated attachment affects the property so as to simply reduce or propose to reduce its area, then the Grantee shall not have the right to terminate this Deed in accordance with clause 15.3 but shall be obliged to proceed with its obligations under this Deed provided that the Price for the Property is reduced to a figure calculated on an area proportionate basis and based upon a price per square metre of $773.82.

15.5   Grantee’s Notice of Termination:

In the event that the Grantee exercises its rights under clause 15.3, then the said Notice of Termination shall:

(a)   specify the updated attachment asserted to significantly and detrimentally affect the property;

(b)   specify the asserted significant and detrimental affectation on the Property of the updated attachment; and

(c)   warrant that the purported termination is as a direct result of the asserted significant and detrimental affectation on the Property of the updated attachment.

  1. A further email with a further draft of clauses 15.3 and 15.4 was sent by Mr Siderowitz to Ms Kallianiotis on 9 October 2018:

I refer to my email of yesterday afternoon and our telephone conversation earlier today. I now attach amended clauses 15.3 and 15.4 which I hope get us where we want to go. Please confirm.

I note your client will be coming in this afternoon to sign the Deed and make arrangements for the payment of the first instalment of the Option Fee. As advised, this can be deposited into my trust account, details of which I provided you with in my letter dated September 4, 2018. Kindly email to me the signed Deed when convenient. My clients will be coming in tomorrow to sign the counterpart which I will forthwith email to you by way of exchange.

Please confirm that it is in order for me to annex to the Deed the Contract that was annexed to the original Deed. I authorise you to do likewise.

Finally, I would appreciate you arranging the payment of my Tax Invoice dated October 3, 3018 in the sum of $5,500.00.

Kindly do not hesitate to telephone if you wish to discuss this matter further.

  1. No evidence was adduced by either side as to what, if anything of substance, was discussed in the telephone call referred to in the email. The redrafted clause 15 was as follows (underlining in clause 15.3 and 15.4 to show changes from the August Option Deed not the previous draft):

15.   Updates of Contract

15.1   Updated attachment:

In the event that the Call Option has not been exercised; the Owner’s solicitor may give the Grantee’s solicitor an updated version of any attachment to the Contract.

15.2   Contract amended with updated attachment:

If the Owner’s solicitor takes the action described in clause 15.1, then, subject to clause 15.3 the Contract is taken to be the document in Schedule 3 but with any updated attachment replacing the earlier version of that attachment.

15.3   Grantee’s right of termination:

Subject to clause 15.4 if any updated attachment significantly and detrimentally affects the property, or if any portion of the property is acquired or proposed to be acquired by any statutory or non-statutory authority thereby causing that portion of the property to be unsuitable for residential land subdivision, then the Grantee shall have the right to terminate this Deed by written notice to the Owner delivered within fourteen (14) days of the date of receipt by the Grantee’s Solicitor of any such updated attachment, time being of the essence.

15.4   Exception to Grantee’s right of termination;

In the event that any updated attachment affects the property so as to either reduce or propose to reduce its area or create a corridor or buffer area, then the Grantee shall not have the right to terminate this Deed in accordance with clause 15.3 but shall be obliged to proceed with its obligations under this Deed provided that the Price for the Property is reduced to a figure calculated on an area proportionate basis and based upon a price per square metre of $773.82.

15.5   Grantee’s Notice of Termination:

In the event that the Grantee exercises its rights under clause 15.3, then the said Notice of Termination shall:

(a)   specify the updated attachment asserted to significantly and detrimentally affect the property;

(b)   specify the asserted significant and detrimental affectation on the Property of the updated attachment; and

(c)   warrant that the purported termination is as a direct result of the asserted significant and detrimental affectation on the Property of the updated attachment.

  1. There were no changes to these clauses in the deed as executed.

Terms of the October Option Deed

  1. The October Option Deed was executed by IDP 971 on 9 October 2018. The executed copy was emailed by Ms Kallianiotis to Mr Siderowitz on 9 October 2018. The executed original was hand delivered to Mr Siderowitz together with bank cheques totalling $550,000. Deeds were exchanged later on 10 October 2018.

  2. The Recitals to the October Option Deed were in the following terms:

A.   The Owner is the registered proprietor of the property;

B.   On 30 August, 2018 the Owner and Grantee entered into a Call Option Deed;

C.   On 2 October, 2018, pursuant to its rights to and following a due diligence period of thirty (30) days, the Grantee terminated the said Call Option Deed;

D.   The Owner now agrees to grant to the Grantee a further Call Option to purchase the property, on the terms set out in this Deed;

E.   The Grantee intends, as soon as practicably possible, to lodge with the Blacktown City Council, a Development Application to develop the property;

  1. Clause 3 dealt with the Development Application and was as follows:

3.   Grantee’s Development Application:

3.1   The Grantee shall, as soon as practicably possible, lodge with the Blacktown City Council (“the Council”) a Development Application to approve a proposed subdivision of the property (“the DA”).

3.2   The Grantee shall, as soon as practicably possible, provide to the Owner full details, draft plans and all supporting documentation in respect of the DA.

3.3   The Grantee shall use its best endeavours to obtain the approval of the Council and all other appropriate authorities in respect of the proposed subdivision and act with the utmost diligence in seeking such approval.

3.4   If requested by the Owner the Grantee shall, within fourteen (14) days of such request, provide the Owner with updates so far as the progress of the DA is concerned.

  1. Clause 15 was in the following terms:

15.   Updates of Contract:

15.1   Updated attachment:

In the event that the Call Option has not been exercised, the Owner’s solicitor may give the Grantee’s solicitor an updated version of any attachment to the Contract.

15.2   Contract amended with updated attachment:

If the Owner’s solicitor takes the action described in clause 15.1 , then, subject to clause 15.3, the Contract is taken to be the document in Schedule 3 but with any updated attachment replacing the earlier version of that attachment.

15.3   Grantee’s right of termination:

Subject to clause 15.4, if any updated attachment significantly and detrimentally affects the property, or if any portion of the property is acquired or proposed to be acquired by any statutory or non-statutory authority thereby causing that portion of the property to be unsuitable for residential land subdivision, then the Grantee shall have the right to terminate this Deed by written notice to the Owner delivered within fourteen (14) days of the date of receipt by the Grantee’s Solicitor of any such updated attachment, time being of the essence.

15.4   Exception to Grantee’s right of termination:

In the event that any updated attachment affects the property so as to either reduce or propose to reduce its area or create a corridor or buffer area, then the Grantee shall not have the right to terminate this Deed in accordance with clause 15.3 but shall be obliged to proceed with its obligations under this Deed provided that the Price for the Property is reduced to a figure calculated on an area proportionate basis and based upon a price per square metre of $773.82.

15.5   Grantee’s Notice of Termination:

In the event that the Grantee exercises its rights under clause 15.3, then the said Notice of Termination shall:

(a)   specify the updated attachment asserted to significantly and detrimentally affect the property;

(b)   specify the asserted significant and detrimental affectation on the Property of the updated attachment; and

(c)   warrant that the purported termination is as a direct result of the asserted significant and detrimental affectation on the Property of the updated attachment.

  1. Attached to the October Option Deed was the form of Contract for Sale of Land to be entered into on exercise of the option. Page 3 of the Contract contained the List of Documents attached to the Contract.

Events after the October Option Deed

  1. As foreshadowed in Ms Kallianiotis’ email of 21 September 2018, a meeting was held with representatives of Blacktown City Council on 27 September 2018. The minutes record that the meeting was a “Pre-Application Meeting”. The minutes state, relevantly:

A re-design of the proposed development is required. This is to include, though it is not limited to the following:

a)   Building setbacks and advice required from other State authorities

….

ii) The proposed site is identified as containing a “Transport Corridor Investigation Area”. The site is subject to Clause 6.10 of Appendix 12 Blacktown Growth Centres Precinct Plan 2013, under State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP SRGC 2006). Consent must not be granted to development in the area marked ‘I’ on the Land Zoning Map without the concurrence of Transport for NSW (TfNSW). You are therefore required to consult with TFNSW for their requirements including, though not limited to, details on the corridor location, the width of the corridor, land area required and any potential requirements that will affect your site. Written evidence of consultation with Transport for NSW and their requirements must be submitted with any development application (DA) for the site and provisions made accordingly in the design and layout of your proposal;

  1. Representatives of IDP 971 thereafter undertook consultation with TfNSW and the Council.

  2. On 23 August 2019, Ms Kallianiotis emailed Mr Siderowitz as follows:

I refer to the above matter.

By way of update our client is still progressing with the application for development approval for the subject property. At this stage it appears that the transport corridor is resulting in a loss of approximately 7,760.7sqm useable land (to be zoned SP2). Please note that this is only an estimate and a final number will only be confirmed at development consent by council.

We will endeavour to keep you updated with the progress of the development application.

  1. Mr Siderowitz responded on 26 August 2019:

Thank you for your email of last Friday, August 23, the contents of which have been noted.

I thank you in anticipation for further updates as to the progress of the Development Application in due course.

  1. According to the uncontradicted evidence of Mr Cassimatis – one of IDP 971’s current solicitors – an outcome of the consultations with TfNSW and the Council was, among other things, the preparation of a revised plan of the subdivision of the Property dated 5 November 2020. That proposed plan contained a Proposed Lot 3 or residue lot of 8106.1m2 in the area marked “I” (Proposed Plan of Subdivision).

  2. On 11 November 2020, TfNSW wrote to the Council in the following terms:

Thank you for referring the subject Development Application 20-00002 (DA) prepared by Think Planners for Dream Property (Applicant) to TfNSW via the NSW Planning Portal on 2 October 2020, in accordance with Clause 6.10 of Appendix 12 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP).

TfNSW is empowered to assess and determine whether to provide concurrence to the DA under the Growth Centres SEPP as it is the rail authority for the Transport Corridor marked “I” on the Land Zoning Map for the purpose of the Growth Centres SEPP.

Assessment requirements under the Growth Centres SEPP

The relevant DA documents that were uploaded onto the NSW Planning Portal on 29 September 2020 have been reviewed, which include:

•   Statement of Environmental Effects - April 2020

•   Architectural Drawings, X Richmond Road, Marsden Park - 08.07.20

•   Survey, X Richmond Road, Marsden Park- 26.10.18

•   Acoustic DA Assessment, 13 .11 .19

The proposed development has been assessed in accordance with the requirements of Clause 6.10 of Appendix 12 of the Growth Centres SEPP. In this regard, taking into account:

a)   the practicability and cost of carrying out public transport projects on the land in the future; and

b)   without limiting paragraph (a), the structural integrity or safety of, or ability to operate, public transport projects on the land in the future; and

c)   without limiting paragraph (a), the land acquisition costs and the costs of construction, operation or maintenance of public transport projects on the land in the future.

Concurrence granted subject to conditions

The Statement of Environmental Effects, prepared by Think Partners in April 2020, makes note that the southern portion of the site has been marked “I” on the Growth Centres SEPP land zoning map and that no development is to be undertaken to the southern portion of the site. The first stage of the proposal includes the subdivision into 22 Torrens titled allotments, including one residue Lot (Lot 18) for infrastructure. Lot 18 aligns with the identified Transport Corridor marked “I” on the Growth Centres SEPP.

TfNSW has taken the above matters into consideration and has decided to grant its concurrence to the development proposed in the DA, subject to the consent authority imposing the conditions at Attachment A.

Should the consent authority determine not to impose the conditions provided at Attachment A in the form provided, then concurrence from TfNSW has not been granted to the DA.

The consent authority is also advised that TfNSW’s concurrence is not to be amended, replaced or superseded by any concurrence which may be issued by any other authority, without further agreement from TfNSW.

Next steps

If, at any point, the DA is amended prior to the consent authority’s determination, please ensure that the amended DA and any new or amended supporting documents are provided to TfNSW for further assessment. Any amendments to the DA may alter the impacts of the proposed development on the Transport Investigation Area corridor assessed by TfNSW, so the concurrence may need to be amended (or refused).

TfNSW would be grateful if a copy of the Notice of Determination and any conditions of consent for the DA be forwarded to TfNSW should the consent authority determine to grant consent to the DA.

In the event that the proposed development is the subject of a Land and Environment Court appeal, the consent authority’s attention is also drawn to Section 8.12 of the Environmental Planning and Assessment Act 1979 which requires the consent authority to give notice of that appeal to a concurrence authority.

Finally, please note that the DA may also have impacts on rail corridors which are not the responsibility of TfNSW. If these impacts trigger any concurrence or comments function of the relevant rail authority under the ISEPP, the DA will need to be referred to that other rail authority for a separate concurrence or comments response.

TfNSW thanks Blacktown City Council for its assistance.

Please contact Lee Farrell on 0407 668 767 or at [email protected] should you wish to discuss this matter further.

  1. On 17 December 2020, Council refused to grant development consent. IDP 971 appealed to the Land and Environment Court. An amended application was lodged.

  2. On 3 November 2021, the parties to the Land and Environment Court proceedings reached an agreement for the determination of those proceedings and consent orders were made on 18 November 2021.

  3. Consent was granted by reference to the Proposed Plan of Subdivision including the creation of Lot 3, being the residue lot of 8,106.1m2 in the area marked “I”.

  4. The consent was a deferred consent to cater for the fact that various easements for stormwater drainage and the like had to be negotiated.

  5. On 8 December 2021, Ms Kallianiotis wrote to Mr Siderowitz:

My client is required to satisfy deferred commencement conditions prior to the DA operating.

Please see attached copy of judgement received.

In good faith and on a without prejudice basis my client has made the payment of $1,100,000.00 to your clients. A copy of the receipts is attached.

I am further instructed that our client is still waiting on neighbour consent to satisfy the deferred commencement conditions.

  1. The deferred conditions were not satisfied until early 2024. On 20 February 2024 the plan of subdivision was issued with a pre-allocated number PP DP 1303453.

  2. On 21 July 2024, Ms Kallianiotis wrote to Mr Siderowitz as follows:

We refer to the above matter.

We are instructed that council has now allocated a transport corridor on part of the property to be purchased by our client. The area that has been allocated can be seen on the extract below of the survey prepared by our client’s consultant. It is the area noted as “Lot 3”. It is calculated to be an area of 8,106.1sqm. A full copy of the survey can be provided or authority for your client to discuss directly with our client’s surveyor if you require.

Pursuant to the Call Option Deed entered into the parties and in particular clause 15.4 the parties are not entitled to rescind the contract but are required to reduce the price on a proportionate basis based upon a price per square metre of $773.82.

Based on the survey above our client calculates the reduction to be 8,106.1 x $773.82=$6,272,662.30 reduction in price. Under our calculation, this would vary the contract price to be $15,727,337.70.

Would you please confirm and advise if you will be preparing a variation to the contract or how you wish to document this variation.

  1. On 22 July 2024, Mr Siderowitz responded:

I thank you for your email of last night and refer to our telephone conversation of earlier today.

As advised, until receipt of your letter of yesterday, neither my clients nor I were aware of the allocation by Council of the Transport Corridor as advised by you.

In view of your advices, I obtained an up to date title search, as attached. You will note, of course, that under the heading “Notations” there is reference to an unregistered dealing PP DP1303453. Would you by any chance have a copy thereof to provide me with? Further, as offered and accepted, a copy of the said Survey Report of your client’s Consultant would also be appreciated.

As advised by me, I confirm that I was today also instructed that there was a recent meeting between your Mr Patel and my clients during which, at my clients’ request, agreement was given in principle to further extend the date for exercise of Option to 10 October, 2025 with settlement on or about 10 January, 2026. Could you kindly please confirm same.

I have scheduled a conference with my clients for next Monday afternoon to thoroughly canvass the above issues and, naturally, will be in further contact with you in due course. Be that as it may, in all the circumstances, I consider it to be mutually beneficial for the parties to enter into a Further Deed of Variation of Call Option to formally evidence those matters.

  1. On 7 August 2024, Mr Siderowitz emailed Ms Kallianiotis in the following terms:

I refer to your email dated July 29, 2024 and our subsequent telephone conversations, both that day and today.

It would seem that we clearly have different interpretations of clause 15.4 of the Call Option Deed.

Be that as it may, and in order to obtain further and proper instructions from my clients, I invite you to provide me with all available details/ documents in your client’s possession in compliance with the provisions of clauses 3.2 and 3.4 of the said Deed. Kindly provide same at your very earliest convenience, bearing in mind that time is now becoming a significant factor in this matter.

  1. The evidence did not provide any detail as to the different interpretations.

  2. On 19 August 2024, Mr Siderowitz emailed Ms Kallianiotis:

I refer to my email dated August 7, 2024 (below) and note that I am yet to hear from you.

Be that as it may, in accordance with clauses 15.1 and 15.2 of the Call Option Deed, I attach updated versions of the following:

1. Property Certificate for Folio Identifier X/X dated July 22, 2024

2. Section 10.7(2) and (5) Certificate issued by Blacktown City Council on August 1, 2024

I look forward to your prompt response to my abovementioned email.

  1. On 28 August 2024, a representative of TfNSW emailed Mr Siderowitz attaching a map of the Property showing the “corridor impact”, as well as the sqm in and out of the corridor, for both zonings.

  2. Mr Siderowitz forwarded that email, and the attached plan to Ms Kallianiotis on 18 September 2024. He stated:

The Official plan I think speaks for itself.

  1. On 18 September 2024, Mr Siderowitz emailed Ms Kallianiotis:

I refer to your email below .

As per the voicemail message left for you just now, I confirm that I do not have any correspondence from Transport for NSW indicating that it was not proceeding with the corridor, as you have suggested.

I otherwise confirm that I have spoken with a Mr Leigh Sales at Transport (0407668767), and he advised that there was no immediate timeframe for the creation of the corridor. This is borne out by various recent articles in The Sydney Morning Herald by a Matt OSullivan.

I note that you will be seeking further instructions regarding the future direction of the matter but, in the interim, would be pleased to receive a response to my email of 7 August.

  1. On 4 October 2024, TfNSW stated as follows in relation to an inquiry concerning the Property:

I refer to your inquiry dated 03 October 2024 regarding the subject property.

Transport for NSW (Roads) advises that:

•   The subject property is within an area under investigation for a potential Roads Project.

The investigations have not yet advanced to the stage where options have been defined and accordingly it is not possible at this date to identify if any part of the subject property would be impacted by this potential project.

Further information in regarding Roads projects in the area can be obtained by contacting the Project Team -- Phone: 1300 367 561 E mail: [email protected];

• The subject property is within the transport corridor marked “I” and subject to the controls at Appendix 11: Blacktown Growth Centres Precinct Plan of State Environment Planning Policy (Precincts - Central River City) 2021. Clause 6.10 of the Appendix relates to the development of land within or adjacent to the transport investigation area.

There are plans for a future rail line in this transport corridor. The timing of the delivery of this rail line is unknown at this stage.

Further information can be obtained via email at [email protected]

•   Please note the Richmond Road and South Street boundaries of the subject property abuts an area of land which is, pursuant to State Environmental Planning Policy Sydney Growth Centres (the SEPP), zoned for a proposed road widening (SP2 Classified Road).

  1. A search of the Property with “Transport Asset Holding Entity of New South Wales” dated 8 October 2024 states, inter alia:

‘A SEARCH OF OUR RECORDS INDICATES THAT AT THIS DATE TRANSPORT ASSET HOLDING ENTITY OF NEW SOUTH WALES (TAHE) HAS NO APPROVED PROPOSAL TO ACQUIRE ANY RIGHT OR INTEREST IN THE PROEPRTY.’

  1. The option was subsequently exercised on 24 March 2025. Completion of the ensuing contract has been extended pending the determination of these proceedings. The disputed part of the purchase price has, pursuant to orders made by consent of the parties, been paid into a controlled monies account held in the name of IDP 971’s solicitors.

Overview of the Contentions

  1. By its amended summons filed 21 February 2025, IDP 971 seeks the following substantive relief:

1   An order that each of cl 15.3 and 15.4 of the October Deed be rectified by adding after the words:

“updated attachment”

the words

“or if the development approval obtained in respect of the development application required under clause 3 hereof.”

2   An order that the price on the front page of the Contract be amended to $15,727,337.70.

  1. As rectified, clauses 15.3 and 15.4 would read as follows (inserted words underlined):

15.3   Grantee’s right of termination:

Subject to clause 15.4, if any updated attachment, [or if the development consent obtained in respect of development application required under cl. 3 hereof] significantly and detrimentally affects the property, or if any portion of the property is acquired or proposed to be acquired by any statutory or non-statutory authority thereby causing that portion of the property to be unsuitable for residential land subdivision, then the Grantee shall have the right to terminate this Deed by written notice to the Owner delivered within fourteen (14) days of the date of receipt by the Grantee’s Solicitor of any such updated attachment, time being of the essence.

15.4   In the event that any updated attachment [or if the operation of the development consent obtained in respect of the development application required under clause 3 hereof] affects the property so as to either reduce or propose to reduce its area or create a corridor or buffer area, then the Grantee shall not have the right to terminate this Deed in accordance with clause 15.3 but shall be obliged to proceed with its obligations under this Deed provided that the Price for the Property is reduced to a figure calculated on an area proportionate basis and based upon a price per square metre of $773.82.

  1. The essence of the case advanced by IDP 971 was that as a result of the written communications between their respective solicitors at about the time the August Option Deed was terminated and before the October Option Deed was executed, a common intention was reached to the effect that “to the extent that the railway corridor adversely affected the use of the Property for residential subdivision, the price would be reduced at the rate of $773.82 psm.”

  2. That common intention is said not to have carried through into the drafting of the October Option Deed – the drafting miscarried in that the respective solicitors thought that the adverse effect would manifest itself in an amended attachment to the Contract which was not correct. This was a case where the parties were aware of the document but misapprehended their effect: Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 at 341C (Carlenka).

  3. If the October Option Deed is rectified in the manner sought, IDP 971 contends that, in the events which have happened, clause 15.4 has been satisfied and applies to the area covered by Lot 3 – the residual lot – such that the purchase price should be reduced at the rate of $773.88 m2 – this underlies order 2 of the relief sought.

  4. The defendants’ joined issue with IDP 971 on both planks of IDP 971’s case – rectification of the October Option Deed and application to the facts even if rectified.

  5. On the question of rectification, by way of general overview, the defendants contended that the effect of adding the words sought by IDP 971 would be to alter the agreement between the parties, not merely to reform the instrument in which the parties expressed their intentions. The only initiating event is said to be the defendants’ solicitor giving IDP 971’s solicitor an updated version of an attachment to the Contract. It was further contended that there is not a skerrick of evidence to support a finding that the common intention of the parties was to change that position by introducing another quite different initiating event – namely the outcome of the development application. Reliance was placed in this regard, on the absence of any evidence being led by IDP 971 of any mistake.

  6. As to the application to the facts, the defendants contended that the development approval does not operate to “reduce or propose to reduce” the area of the Property, nor does it operate to “create a corridor or buffer area”. At present, no such corridor or buffer area has been created. There has been no reduction or proposed reduction in the area of the Property and the development approved does not operate to reduce IDP 971’s rights in any way. All of its rights are preserved, including a right to substantial compensation if and when the corridor is resumed.

Relevant Principles

  1. In Simic v NSW Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 at [103]-[104], Gageler, Nettle and Gordon JJ stated:

[103]   Rectification is an equitable remedy, the purpose of which is to make a written instrument “conform to the true agreement of the parties where the writing by common mistake fails to express that agreement accurately”. For relief by rectification, it must be demonstrated that, at the time of the execution of the written instrument sought to be rectified, there was an “agreement” between the parties in the sense that the parties had a “common intention”, and that the written instrument was to conform to that agreement. Critically, it must also be demonstrated that the written instrument does not reflect the “agreement” because of a common mistake. Unless those elements are established, the “hypothesis arising from execution of the written instrument, namely, that it is the true agreement of the parties” cannot be displaced.

[104]   The issue may be approached by asking - what was the actual or true common intention of the parties? There is no requirement for communication of that common intention by express statement, but it must at least be the parties’ actual intentions, viewed objectively from their words or actions, and must be correspondingly held by each party.

  1. Equity focuses on what is unconscientious for a party to assert about a contract. The rationale is that it is unconscientious for a party to a contract to seek to apply the contract inconsistently with what he or she knows to be the common intention of the parties at the time that the written contract was entered: see Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 at [444] per Campbell JA (Franklins).

  2. Rectification is not confined to a situation where the parties intended to use one set of words but mistakenly used another. It applies where the parties intended to use the words they did but were mistaken as to their effect.

  3. In Carlenka, Sheller JA stated at 341 C to E:

In his book The Principles of Equitable Remedies, 4th ed (1990) Dr Spry QC (at 597-598), dealing with the case where the parties were aware of the precise terms of the relevant part of the document but misapprehended their effect, distinguished between two positions. He said (at 597):

“… The first position occurs where the concurrent intention, that is, the intention that the document is desired to effectuate, remains the governing intention. In this event it should not matter that the precise terms of the document have been seen by the parties, and rectification, where otherwise appropriate should be ordered.”

The learned author referred to the judgment of Brightman J and continued (at 597-598):

“… The second position arises where the parties, whatever their previous intention may have been, have ceased to retain that intention as their governing intention and have formed instead an intention to be bound by the precise terms of the document in question, regardless of possible discrepancies between its provisions and prior or other intentions on their part. In this event rectification is not appropriate.”

  1. The present case is said to be of the first kind, where the parties have used words which they intended to use but which, properly construed, do not express their true intention.

  2. It is clear that the onus on the party seeking rectification is a heavy one - clear and convincing proof is required to succeed in a rectification claim: Newey v Westpac Banking Corporation [2014] NSWCA 319 at [170] per Gleeson JA.

  3. In Franklins at [451]-[461] Campbell JA reviewed the authorities on standard of proof for rectification, observing at [439] that great care is required in making the factual findings of common intention that found a rectification order. His Honour concluded this passage at [461] with the following:

[461]   To conclude that the parties have misrecorded their common intention in that sort of situation involves the solicitors on both sides of the transaction having each failed to grasp and express the intention of his or her own client. In other words, each of the solicitors has been mistaken, and, furthermore, mistaken in the same way. There is a measure of inherent unlikelihood in such an event happening. If the words of which rectification are sought are clear in meaning on their face, that unlikelihood is compounded — one would not ordinarily expect two lawyers, each professional dealers in language, to make the same mistake about the meaning of words that are clear on their face. However, we know that sometimes even experienced solicitors take or are given inadequate instructions, or misunderstand their instructions, and in consequence misrecord their client’s intention, so these matters are no more than reasons for caution in making the factual findings upon which a rectification order is based.

  1. In Public Trustee v Smith [2008] NSWSC 397, White J stated at [71] that it must be demonstrated with clarity that the parties had a sufficiently precise intention that the Court can determine both the substance and the detail of the precise variation to be made to the wording of the instrument.

  2. There is also no issue that parol evidence is receivable in an action seeking rectification, to establish what was the intention of each of the parties: see Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65 at [269] per Campbell JA.

Determination

  1. The contention by the defendants that there should be no rectification because the parties intended to use the words that they did can be immediately put to one side. This is not how the rectification case is put. The case is put on the basis that whilst there was no mistake as to the words used, there was a mistake as to their effect.

  2. The contention is that the parties had a common intention but the words used miscarried in the sense that those words did not give effect to the common intention.

  3. I take the common intention alleged by IDP 971 to be that set out at [1.5] of the plaintiff’s revised submissions dated 16 September 2025:

Ultimately an agreement was reached that, to the extent that the railway corridor adversely affected the use of the Property for residential subdivision, the price would be reduced at the rate of $773.82 psm.

Was there a common intention in the terms contended for by IDP 971?

  1. In determining this, the obvious starting point is a consideration of why it was that the August Option Deed was terminated and the October Option Deed entered into. The two are obviously linked in the sense that the amendments relevantly introduced into the October Option Deed were intended to deal with the concerns which led to the termination of the August Option Deed.

  2. I have set out the chronological communications above. They are all in writing. Whilst some of the emails refer to telephone conversations having occurred between Ms Kallianiotis on behalf of IDP 971 and Mr Siderowitz for the defendants, no evidence was adduced as to what was said.

  3. The following points emerge from the communications:

  1. IDP 971 became concerned, during the 30 day due diligence period in the August Option Deed of the impact of the potential rail corridor affecting the Property and sought further detail from the defendants. The concern is understandable where IDP 971 was purchasing the Property to develop it for residential housing and the corridor may reduce the area that could be developed;

  2. to the extent that it was not already aware, IDP 971 were provided with some background in relation to the corridor in the form of the two extracts provided by Mr Siderowitz on 12 September 2018. The extract of the later report – from Mr Haskew – was to the effect that in his view, both the Council and TfNSW would require the area to be free from development;

  3. Ms Kallianiotis wrote to Mr Siderowitz on 21 September 2018 relevantly pointing out that in order for IDP 971 to assess the full impact of the railway corridor, it was required to submit a Development Application. Although unstated, lying behind this statement, and indeed the foreshadowed meeting with Council, was the provisions of the 2006 SEPP whereby development consent could not be granted without the concurrence of TfNSW. In other words, the determination of the development application would require TfNSW to indicate whether it opposed development of the proposed corridor;

  4. significantly, to deal with the issue of the impact of the railway corridor, Ms Kallianiotis proposed amendments to clause 15.4. On 24 September 2018 she emailed handwritten amendments to the August Option Deed to the same effect as set out in her 21 September 2018 email;

  5. on 26 September 2018, Mr Siderowitz emailed Ms Kallianiotis. Relevantly, he stated “Proposed amendments to cl 15 agreed”. His email response also proposed various terms regarding development approval and consent;

  6. on 3 October 2018, Ms Kallianiotis emailed Mr Siderowitz stating that IDP 971 was “willing to again reiterate its offer made on 26 September 2018”. That offer was in response to the email from Mr Siderowitz to Ms Kallianiotis dated earlier in the day on 26 September 2018 which contained eight points. Ms Kallianiotis’ 26 September 2018 email did not agree to items 2, 5 and 6 which relevantly sought to reduce the option period to 36 months (item 2), vary the instalments of the option fee (item 5) and impose a three year sunset clause on development consent (item 6). Relevantly, there was no negotiation in relation to the changes proposed to clause 15.4 – Mr Siderowitz had indicated those changes were agreed;

  7. at 5.04 pm, Mr Siderowitz emailed Ms Kallianiotis to the effect that he was instructed to proceed on Ms Kallianiotis’ offer – being the 26 September 2018 offer. He said he would commence drafting a fresh deed, which he did;

  8. at this time, what had been agreed, relevantly, were the amendments to clause 15 proposed by Ms Kallianiotis on 21 and 24 September 2018. Mr Siderowitz did not, however, simply adopt the changes proposed by Ms Kallianiotis either in her 21 or 24 September 2018 emails. He made his own drafting changes to both clauses 15.3 and 15.4;

  9. the new proposed clauses 15.3 and 15.4 were as follows (underlining showing changes from existing clauses):

15.   Updates of Contract:

15.1   Updated attachment:

In the event that the Call Option has not been exercised, the Owner’s solicitor may give the Grantee’s solicitor an updated version of any attachment to the Contract.

15.2   Contract amended with updated attachment:

If the Owner’s solicitor takes the action described in clause 15.1, then, subject to clause 15.3, the Contract is taken to be the document in Schedule 3 but with any updated attachment replacing the earlier version of that attachment.

15.3   Grantee’s right of termination:

If, other than by virtue of a reduction or proposed reduction in its area, any updated attachment significantly and detrimentally affects the property, or if any portion of the property is acquired or proposed to be acquired by any statutory or non-statutory authority or if there is created any corridor or buffer area that causes any portion of the property to be unsuitable for residential land subdivision, then the Grantee shall have the right to terminate this Deed by written notice to the Owner delivered within fourteen (14) days of the date of receipt by the Grantee’s Solicitor of any such updated attachment, time being of the essence.

15.4   Exception to Grantee’s right of termination:

ln the event that any updated attachment affects the property so as to simply reduce or propose to reduce its area, then the Grantee shall not have the right to terminate this Deed in accordance with clause 15.3 but shall be obliged to proceed with its obligations under this Deed provided that the Price for the Property is reduced to a figure calculated on an area proportionate basis and based upon a price per square metre of $773.82.

15.5   Grantee’s Notice of Termination:

In the event that the Grantee exercises its rights under clause 15.3, then the said Notice of Termination shall:

(a)   specify the updated attachment asserted to significantly and detrimentally affect the property;

(b)   specify the asserted significant and detrimental affectation on the Property of the updated attachment; and

(c)   warrant that the purported termination is as a direct result of the asserted significant and detrimental affectation on the Property of the updated attachment.

  1. Mr Siderowitz then redrafted his own clauses and sent them to Ms Kallaniotis on 9 October 2018. His covering email refers to a telephone conversation “earlier today” but, as I have said on many occasions, no evidence was adduced as to what was discussed. There were a number of changes. The reworded clauses – which remained unchanged in the executed October Option Deed were as follows (underlining to show changes from the August Option Deed and not the previous draft):

15.   Updates of Contract

15.1   Updated attachment:

In the event that the Call Option has not been exercised; the Owner’s solicitor may give the Grantee’s solicitor an updated version of any attachment to the Contract.

15.2   Contract amended with updated attachment:

If the Owner’s solicitor takes the action described in clause 15.1, then, subject to clause 15.3 the Contract is taken to be the document in Schedule 3 but with any updated attachment replacing the earlier version of that attachment.

15.3   Grantee’s right of termination:

Subject to clause 15.4 if any updated attachment significantly and detrimentally affects the property, or if any portion of the property is acquired or proposed to be acquired by any statutory or non-statutory authority thereby causing that portion of the property to be unsuitable for residential land subdivision, then the Grantee shall have the right to terminate this Deed by written notice to the Owner delivered within fourteen (14) days of the date of receipt by the Grantee’s Solicitor of any such updated attachment, time being of the essence.

15.4   Exception to Grantee’s right of termination:

In the event that any updated attachment affects the property so as to either reduce or propose to reduce its area or create a corridor or buffer area, then the Grantee shall not have the right to terminate this Deed in accordance with clause 15.3 but shall be obliged to proceed with its obligations under this Deed provided that the Price for the Property is reduced to a figure calculated on an area proportionate basis and based upon a price per square metre of $773.82.

15.5   Grantee’s Notice of Termination:

In the event that the Grantee exercises its rights under clause 15.3, then the said Notice of Termination shall:

(a)   specify the updated attachment asserted to significantly and detrimentally affect the property;

(b)   specify the asserted significant and detrimental affectation on the Property of the updated attachment; and

(c)   warrant that the purported termination is as a direct result of the asserted significant and detrimental affectation on the Property of the updated attachment.

  1. the October Option Deed was then executed and exchanged with clauses 15.3 and 15.4 unchanged from the draft immediately above.

  1. IDP 971 contends that the email from Ms Kallianiotis dated 21 September 2018:

  1. identified a risk that the development area of the Property would be reduced by the Transport Corridor (the Corridor Risk), and the measurable extent of that reduction could be ascertained only by IDP 971 making a development application; and

  2. proposed that the extent of that reduction be reflected in the Purchase Price by amending the August Deed to extend the scope of the then clause 15.4, to cover the outcome of the development application.

  1. It is then contended that on 26 September 2018, Mr Siderowitz communicated acceptance of that way of managing the Corridor Risk. Further, it is contended that in Mr Siderowitz’s proposals for clauses 15.3 and 15.4 made on 8 and 9 October 2018, the parties:

  1. were not negotiating for amendments to do anything other than manage the Corridor Risk; and

  2. were in agreement, ie possessed of a common intention that the likely impact of the Transport Corridor, was to be dealt with by a pro-rata price reduction at an agreed rate per square metre and that the October Option Deed was to provide for, ie “conform to” that intention/agreement.

  1. The mistake in drafting was the use of an updated attachment as the initiating event in circumstances where the determination of a development application would not result in an updated attachment.

  2. As set out above, the onus on a party seeking clarification is a heavy one – clear and convincing proof of the alleged common intention is required. Put another way, it must be demonstrated with clarity that the parties had a sufficiently precise intention.

  3. I am not satisfied that IDP 971 has discharged that heavy onus on the evidence before me. I am not satisfied that there was a common intention as contended for by IDP 971 – namely that to the extent that the railway corridor adversely affected the use of the Property for residential subdivision, the price would be reduced at the rate of $773.82 per square metre.

  4. It is immediately to be observed that the alleged common intention as set out immediately above is nowhere to be found in any of the communications between the parties during the relevant period. Nowhwere is it said that the trigger for, and measure of, the reduction in purchase price is the “extent that the railway corridor adversely affected the use of the Property for residential subdivision”. The concept of “adverse affectation” is in any event quite imprecise and no doubt susceptible to different meanings.

  5. Whilst it seems obvious that IDP 971 in the 21 September 2018 email from Ms Kallianiotis to Mr Siderowitz identified what may be termed a “Corridor Risk” – being the impact of the transport corridor on the development of the Property, that is only the first step, and a small step at that, along the path to rectification.

  6. The manner in which that risk was proposed to be dealt with by IDP 971 – as reflected in the words proposed by Ms Kallianiotis – is far from clear. The proposed amendment to clause 15.4 is simply to pick up any proposal to reduce the area of the Property. It is not entirely clear how the proposed definition of “area” which includes “any corridor or buffer area that causes part of the land to be unsuitable for residential land subdivision” is intended to fit in with the substantive clauses, including the proposed to be amended clause 15.4.

  7. Even assuming, most favourably to IDP 971 that what was intended by the proposed amendments was the creation of a corridor or buffer area that causes part of the land to be unsuitable for residential land subdivision, a number of further questions arise. Picking up on one of the matters raised during argument, what is meant by a “corridor or buffer area” – is it an area which TfNSW has determined will be used for a transport corridor, or is it simply an area in respect of which TfNSW has expressed concurrence with a development consent that does not presently permit development?

  8. Further, what is meant by part of the land being “unsuitable” for residential land subdivision? Does it mean being unable to be built on at all or not able to be developed to the same extent as the rest of the Property?

  9. Against the background of a development application having to be submitted which would require consultation with TfNSW, there are a number of potential outcomes of the consultation with TfNSW and, more particularly, the basis on which TfNSW may express concurrence. The options would include a formal corridor being created or TfNSW not yet determining to create a corridor but not permitting any development at the present time to enable a decision to be made at a later time as to whether to go ahead with the proposed corridor. Which of these options was intended to be picked up is far from clear.

  10. Under the first option, development would not be possible. Under the second, it would not be possible until a decision is made as to whether to proceed with the corridor or not. If a decision is made to proceed, the land would be compulsorily acquired and compensation paid to the land owner at that point in time under the Just Terms Act (defined below).

  11. The fact that Mr Siderowitz subsequently said he was instructed to agree to the proposed amendments to clause 15 does not advance the rectification claim too far in the absence of some clear statement as to what his clients – the defendants – understood was intended by the amendments.

  12. There is no evidence in the present case about what either side subjectively intended.

  13. The position does not become any clearer when regard is had to what subsequently occurred – principally the drafting efforts of Mr Siderowitz. The drafting of clauses 15.3 and 15.4 on 8 October 2018 is far from clear. There was then a telephone discussion between Ms Kallianiotis and Mr Siderowitz on the morning of 9 October 2018, resulting in the redraft sent later that day.

  14. There was no evidence from either side as to what was discussed in this conversation – whether it was simply a confirmation of some earlier common intention or otherwise. It is for IDP 971 to prove the common intention and its continuation up to execution.

  15. For these reasons above the claims advanced by IDP 971 fail.

  16. The wording proposed by IDP 971 to rectify clauses 15.3 and 15.4 of the October Option Deed also demonstrate the difficulty with IDP 971’s case. The trigger proposed to be introduced is now “the operation of the development consent” affecting the Property so as to create a corridor or buffer area. Such a trigger, in my view, is nowhere to be found in the communications of the parties from 21 September 2018 onwards. Expressed in its rectified form the question of the development consent may affect the Property so as to reduce or propose to reduce its area or create a corridor or buffer area. It was not explained how the operation of the development consent would affect the Property in either of these ways.

  17. For completeness, I also reject the contention that any of the conduct by Mr Siderowitz in response to the updates provided by Ms Kallianiotis in relation to the development consent, amount to an admission on the part of the defendants that the October Option Deed should be rectified in the manner contended. As I understood the submission, it rested principally on the email from Ms Kallianiotis to Mr Siderowitz dated 23 August 2019 and his response dated 26 August 2019. I have set out earlier in these reasons the two emails.

  18. Ms Kallianiotis’ email is nothing more than an update as to the progress of the application – “at this stage it appears that the transport corridor is resulting in a loss of approximately 7,760.7 sqm useable land” – and Mr Siderowitz simply noted the update. Nothing in this correspondence could constitute an admission.

Should the contract price be reduced?

  1. In light of the conclusion I have reached above to the effect that the contract should not be rectified, it is strictly unnecessary for me to consider the question of whether the contract price should be reduced according to the rectified clause 15.4.

  2. Against the possibility that I am wrong in relation to the rectification issue above, I turn now to consider whether, if the October Option Deed is rectified in the manner contended for by IDP 971 that, in the events which have happened, clause 15.4 has been activated in respect of the residual Lot 3, such that the price should be reduced by the claimed $6,272,662.30.

  3. Whilst the evidence seems clear enough that TfNSW was consulted and expressed concurrence with the Proposed Plan of Subdivision which created the residual Lot 3, it is equally clear that TfNSW has not yet determined whether to proceed with the Transport Corridor and as such no corridor has yet been “created” in a legal sense. In a practical sense, no corridor or buffer area has been created either. A residential lot has been created which cannot presently be developed.

  4. It should be kept firmly in mind however, that I am considering this second point on the basis, contrary to what I have held above, that the October Option Deed would be rectified in the manner contended for by IDP 971.

  5. The defendants contended that I could not be satisfied that in the events which have happened, there has been the creation of a corridor or buffer area within the meaning of clause 15.4. The defendants’ primary contention was that this would only be satisfied in the strict sense of the formal creation of a Transport Corridor by TfNSW by the compulsory acquisition of the relevant part of the Property under the Land Acquisition (Just Terms Acquisition) Act 1991 (NSW) (Just Terms Act). Prior to that occurring, so the defendants’ argument ran, the position is simply that the relevant part of the Property has been designated as a residual lot. There remains the potential for its development.

  6. If the relevant question was to be considered devoid of context, I would be inclined to accept the defendants’ contention. There is a well understood means by which, in a statutory sense, a corridor can be created.

  7. The context here, as perhaps always, is important. I am construing the words “create a corridor or buffer area” in the context of a rectified clause 15.4. As rectified, immediately before the words “create a corridor or buffer area” are the words “so as to either reduce or propose to reduce its area or”. Senior counsel for the defendants accepted that the formal creation of a corridor under the Just Terms Act involves a compulsory acquisition of the relevant land which in turn is preceded by a proposed acquisition notice (PAN) under the Just Terms Act.

  8. On this analysis, if “create a corridor or buffer area” was intended to refer to the formal or legal process those words would not be necessary as the formal process would satisfy the preceding words of “reduce or propose to reduce its area”.

  9. On the hypothesis of the rectified agreement, the parties must be taken to have intended something different and lesser than the formal creation of a corridor and, relevantly, something created from the operation of the development consent. Creation of a residual lot in the area of the existing corridor which is not presently able to be developed under the terms of the development consent, likely falls within what was objectively intended on the agreement as rectified as being a corridor or, more likely, buffer area.

  10. As such, had I reached a different view on the rectification issue, I would likely have upheld IDP 971’s position on the second issue.

Conclusion and orders

  1. For the reasons set out above, IDP 971’s claims fail. The amended summons should thus be dismissed. There is no reason why costs should not follow the event.

  2. The Court orders that:

  1. Amended summons dismissed.

  2. The plaintiff pay the defendants’ costs of the proceedings.

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Decision last updated: 02 October 2025

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Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407
MBF Investments Pty Ltd v Nolan [2011] VSCA 114