Masonic Homes Ltd v Oppedisano - [2016] SASC 196

Supreme Court of South Australia
(Civil)
MASONIC HOMES LTD v OPPEDISANO & PLATINUM PROPERTY RETIREMENT PTY LTD
[2016] SASC 196
Judgment of The Honourable Justice Doyle
16 December 2016
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - ILLEGAL AND VOID CONTRACTS
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS
The plaintiff and the first defendant entered into a contract for the sale and purchase of a portion of a larger parcel of land to be acquired by the first defendant. The land the subject of the contract was defined in the contract as the land marked “A” on the plan in Annexure B to the contract. The plan in Annexure B to the contract was a copy of the Certificate of Title for the larger parcel of land, with a hand drawn rectangle in the bottom right hand corner containing the words “Masonic Village 4 ha Indicative Only”.
The plaintiff contended that the contract was void for uncertainty; that the land in the contract was not sufficiently certain as to subject matter in that the area and dimensions of the land were unclear, and were not capable of being ascertained from the terms of the contract (at least not without further agreement between Masonic Homes and PPR); and that it was not sufficiently certain as to price as the purchase price was to be derived by a formula which required the area of the land to be established. The defendants denied that the contract was uncertain. They also contended that, in any event, the plaintiff had elected to affirm the validity of the contract, or was estopped from asserting that the contract was void for uncertainty.
Held per Doyle J, dismissing the plaintiff’s claim:
1. The contract is not void for uncertainty.
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; Byrnes v Kendle (2011) 243 CLR 253; Taluja v Shree Shirdi Sai Sansthan Sydney Ltd [2016] NSWCA 158; Ipex Software Services Pty Ltd v Hosking [2000] VSCA 239; Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429; York Air Conditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth (1949) 80 CLR 11; Equuscorp Pty Ltd v Belperio [2006] VSC 14; Equuscorp Pty Ltd v Antonopoulos [2008] VSCA 179, discussed.
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193; Thorby v Goldberg (1964) 112 CLR 597; Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130; Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; Brice v Chambers [2014] QCA 310; Australian Securities and Investments Commission v Fortescue Metals Group Ltd (2011) 190 FCR 364; Hall v Busst (1960) 104 CLR 206; Goldsworthy Mining Ltd v Commissioner of Taxation (Cth) (1973) 128 CLR 199; Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235; Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 83 ALJR 196; Sargent v ASL Developments Ltd (1974) 131 CLR 634; Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26; Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; Supalux Paint Co Pty Ltd v Vyse [1999] WASC 78; Agius v Sage [1999] VSC 100, considered.

MASONIC HOMES LTD v OPPEDISANO & PLATINUM PROPERTY RETIREMENT PTY LTD
[2016] SASC 196
Civil
DOYLE J:

In 2007, the first defendant (Mr Oppedisano) entered into a contract to purchase an approximately 67 hectare parcel of land south of the town of Roseworthy, being Certificate of Title Volume 5346 Folio 756 (the Development Land).
On 26 June 2009, the plaintiff company (Masonic Homes Limited (Masonic Homes)) and Mr Oppedisano entered into a contract (the Contract) for the sale and purchase of a portion of the Development Land (the Land).
The Land is defined in the Contract as the portion of the land within Certificate of Title Volume 5346 Folio 756 and marked “A” on the plan in Annexure B to the Contract. The plan in Annexure B to the Contract is a copy of the plan contained in Certificate of Title Volume 5346 Folio 756, with a hand drawn rectangle in the bottom right hand corner containing the following words:
MASONIC
VILLAGE
4 ha
Indicative
Only
The second defendant (Platinum Property Retirement Pty Ltd (PPR)) was incorporated on 23 November 2010. On 27 November 2013, PPR was substituted as vendor by way of a Supplemental Agreement.
In these proceedings, Masonic Homes contends that the Contract is void for uncertainty. In particular, it pleads that the Land in the Contract is not sufficiently certain as to subject matter and price in that:
· the area and dimensions of the Land are unclear, and are not capable of being ascertained from the terms of the Contract – at least not without further agreement between Masonic Homes and PPR; and
· the purchase price is to be derived by a formula which requires the area of the Land to be established.
The defendants deny that the Contract is void for uncertainty. They contend that pursuant to the Contract the parties agreed that:
·    the Land is a 4 hectare parcel of land located at Lot 5, Main North Road, Roseworthy, being a portion of Certificate of Title Volume 5346 Folio 756;
·    the location of the Land is as depicted by the hand drawn rectangle in Annexure B to the Contract, albeit the precise dimensions, and therefore precise location, would be determined by the survey provided for in special condition 3 (and be able to be moved by agreement pursuant to special condition 6.4); and
·    the price payable by Masonic Homes for the Land is $3 million, calculated pursuant to the formula contained in special condition 3 of the Contract.
The defendants contend that even if this construction is not accepted by the Court, nevertheless the Contract is capable of bearing meaning such that the Contract is not void for uncertainty. The defendants identify two alternative constructions considered later in these reasons.
The defendants further contend that, in any event, Masonic Homes has elected to affirm the validity of the Contract, or is estopped from now asserting that the Contract is void for uncertainty.
The course of the trial
The only oral evidence adduced at trial was from a surveyor called by Masonic Homes, Mr Pohl. His evidence related to the nature and extent of the uncertainty in the depiction of the Land in the plan in Annexure B of the Contract from a surveyor’s perspective, and is considered separately later in these reasons.
The parties otherwise relied upon documentary evidence in support of their respective cases. The narrative that follows constitutes the findings I have made based upon those documents.
Factual Background
As mentioned, Mr Oppedisano purchased the Development Land in 2007. It is an approximately 67 hectare parcel of land to the south of Roseworthy. Mr Oppedisano planned to develop the land.
While the evidence only reveals some aspects of the communications between the parties, it is apparent that from as early as October 2008 there were communications between Masonic Homes and Mr Oppedisano in relation to the possibility of Masonic Homes purchasing a portion of the Development Land for the purpose of developing a retirement village, as part of the larger development contemplated by Mr Oppedisano.
These communications included an email dated 20 October 2008 from Mr Doug Strain (the chief executive officer of Masonic Homes) to Mr Oppedisano, in which he confirmed Masonic Homes’ interest in progressing its consideration of the purchase of a portion of the Development Land with a view to developing a retirement village in the Roseworthy region. He went on to describe Masonic Homes’ commitment to expanding the retirement living options in South Australia by purchasing and developing sites of approximately 3 hectares to enable communities to be established in close proximity to relevant facilities, explaining that the Development Land appeared to be suitable for the type of retirement village contemplated by Masonic Homes. Mr Strain added that he expected to be able to provide an indicative price within a few days, but that if Masonic Homes did agree to an acquisition, the development of the retirement village would not commence until all appropriate infrastructure, planning approval and rezoning was in place for Mr Oppedisano’s larger development.
By email dated 22 October 2008, Mr Strain provided Mr Oppedisano with an “indicative, non-binding pricing offer for the acquisition of a 3 hectare or so parcel of land within your proposed Roseworthy development site”. A range of indicative prices (or formulae for determining price) were given, which included a figure of $65 per square metre once planning approval had been gained for a retirement village of up to 120 living units.
There is no evidence of the parties’ communications between this email and 24 April 2009.
By letter dated 24 April 2009 from Mr Strain to Mr Oppedisano, Mr Strain set out the terms of an indicative non-binding offer from Masonic Homes. The letter identified a number of preconditions, which included a precondition that Mr Oppedisano obtain approval for the rezoning of the whole site to enable the progression of the larger development proposed by Mr Oppedisano. It also included a precondition that:
You produc[e] a structure plan that facilitates the development and that has been agreed by the District Council of Light as being suitable for the development of a Statement of Intent and ultimate Development Plan Application, to allow development approval for a retirement living development on the subject land. Within that structure plan the location and relationship of the retirement living site must be identified in context to retail and service centres, access and transport, along with all other infrastructure to the site being identified.
Mr Strain wrote that he anticipated that the purchase would not settle until late 2010, and that construction on the site proposed to be purchased by Masonic Homes would not commence until 2011. In relation to price, he wrote:
… I propose that the purchase price for the site will be between $1.7 million and $2.5 million with settlement to take place in late 2010. I must emphasise this figure is indicative only and I propose the establishing of the final purchase price be struck subject to the gaining of an independent valuation and final contract negotiations.
By letter dated 1 May 2009 from Mr Oppedisano to Mr Strain and Mr Moulds (the chief development officer of Masonic Homes), Mr Oppedisano wrote “in response to your offer regarding the possible acquisition of a 4 hectare site of land in Roseworthy for the development of a retirement living community.” The letter addressed several matters in relation to the preconditions that had been proposed, before turning to the topic of price. On that topic, Mr Oppedisano wrote:
With respect to pricing, as discussed (as per our valuation supporting a price of $75.00 per square metre), we agree to $75.00 per square metre, therefore making the acquisition of the four hectare site at a purchase price of three million dollars ($3,000,000).
By letter dated 28 May 2009, Mr Adrian Swale of Minter Ellison, solicitors for Masonic Homes, wrote to Mr Oppedisano, enclosing a draft contract. It consisted of a Law Society of South Australia standard form contract for the sale and purchase of land (with attached Schedule), together with various special conditions set out in an Annexure A to the contract, apparently drafted by Minter Ellison.
Item 3 of the Schedule to the draft contract described the land the subject of the draft contract in the same manner as it was described in the Contract (the land marked “A” on the plan in Annexure B). However, there was no content in the Annexure B attached to this draft contract. So far as price was concerned, item 11 of the Schedule provided a cross-reference to special condition 3 of Annexure A. That special condition was headed “Measurement of Property and Purchase Price” and was in the form it ultimately appeared in the Contract (see below).
By email dated 16 June 2009, Mr John Goldberg of Cowell Clarke, solicitors for Mr Oppedisano, made a number of comments in relation to the draft contract. They included the following comments in relation to the land to be sold and the price:
…
2.The purchase price referred to in item 11 of the Schedule and clause 3 of the Special Conditions is to be determined by measurement of the land on the basis of $75 per m². No substantial amendment is required to this provision but we would like the contract Schedule to read $3 million subject to clause 3 of the Special Conditions. This should allow then for adjustment on final survey rather than the actual determination of the price.
…
5.Clause 3 of the Schedule refers to the area marked ‘A’ on the plan in Annexure B. This area should be a rectangle of a total area of 4 hectares, the southern boundary of which is contiguous with section 80 and the eastern boundary (the long side of the rectangle) is contiguous with Main North Road. At this stage we would rather not be more prescriptive that that as the length and breadth of the Land has not yet been determined.
…
By email dated 25 June 2009 from Ms Leah Wright of Minter Ellison to Mr Goldberg of Cowell Clarke, Ms Wright attached a note from Mr Swale of the same date (setting out his instructions in relation to various of the matters raised in Mr Goldberg’s email of 16 June 2009), and a proposed plan for the retirement village to be developed by Masonic Homes. After identifying these documents, Ms Wright’s email added:
Obviously, the proposed location of the property will need to be more accurately delineated on the plan before it is attached to the contract.
Mr Swale’s attached note contained the following responses in relation to items 2 and 5 of Mr Goldberg’s email:
…
2.Item 11 of the Schedule and special condition 3 – Not agreed. Special condition 3 is drafted to ensure that the parties have a fixed formula that can be used to calculate the purchase price once the exact location and area of the property has been agreed and surveyed. Inserting a fixed purchase price (which is subject to survey, and accordingly, almost certain to change) does not provide any more certainty or comfort to either party. We also think that it is a risk for stamp duty assessment purposes.
…
5.Item 3 of the Schedule – The description of the property needs to be sufficiently certain to ensure that the parties are entering into an enforceable contract. My client proposes that the attached plan be annexed to the contract to delineate the property. Special condition 6.4 allows the parties (by mutual agreement, acting reasonably) to vary the location of the property.
…
By letter dated 26 June 2009, Mr Goldberg of Cowell Clarke wrote to Ms Wright of Minter Ellison in the following terms:
Please find attached a copy of Certificate of Title Volume 5346 Folio 756 indicating where the proposed Masonic Village is to be located on the title plan.
Would you please immediately forward a copy of this to your client as you will need confirmation that the location is agreed.
I am instructed that we are meeting at your client’s office at or about 5.00 pm today to sign the final agreement.
Attached to this letter was a copy of Certificate of Title Volume 5346 Folio 756, with a hand drawn rectangle indicating the land to be purchased by Masonic Homes. This document is in the same form as the document that constitutes Annexure B to the Contract.
Shortly before 5pm that day, Ms Wright of Minter Ellison sent by email to Mr Moulds of Masonic Homes (copied to Mr Goldberg of Cowell Clarke) an amended version of the contract documents for execution by the parties. The version of the contract documents attached to that email included within Annexure B a copy of the plan that included a hand drawn rectangle that differed from the hand drawn rectangle that appeared on the plan attached to Mr Goldberg’s letter of 26 June 2009 (a copy of which appears in the executed version of Annexure B). The hand drawn rectangle on the plan attached to Ms Wright’s email differed in that it contained hatching and the letter “A”, and did not contain the words “MASONIC HOMES 4 ha Indicative Only”. However, to the human eye, the rectangle is drawn in the same location on the plan in the executed version of Annexure B and with the same dimensions.
The parties executed the Contract later on 26 June 2009. It was executed by Mr Oppedisano as vendor, and by Mr Strain on behalf of Masonic Homes as purchaser.
The Contract
The Contract comprised the Law Society of South Australia standard form contract for the sale and purchase of land (together with an attached Schedule setting out various items mentioned in the standard conditions), the special conditions set out in Annexure A, and the plans contained in Annexures B and C.
Under standard condition 2 of the Contract, the Vendor (Mr Oppedisano) agreed to sell and the Purchaser (Masonic Homes) agreed to purchase the Land described in item 3 of the Schedule, upon and subject to the terms and conditions in the Contract. Under standard condition 6, the Purchaser agreed to pay the Purchase Price to the Vendor for the Land.
In Item 3 of the Schedule, the Land was described as:
An estate in fee simple in that portion of the land comprised in Certificate of Title Volume 5346 Folio 756 marked ‘A’ on the plan in Annexure B.
Annexure B contained a copy of the plan, being the Certificate of Title Volume 5346 Folio 756. On that plan was a hand drawn rectangle containing the words “MASONIC VILLAGE 4 ha Indicative Only”. The plan in Annexure B appeared as follows:
I observe that despite the reference in Item 3 to the Land being marked ‘A’, it was not marked in this way.[1] But the parties did not suggest that anything turns on this. It is clear that Item 3 is intended to refer to the Land depicted by the hand drawn rectangle on the plan in Annexure B.
[1] cf the version of the plan attached to Ms Leah’s email of 26 June 2009, which did contain a hand drawn rectangle marked ‘A’.
In relation to the Purchase Price, Item 11 of the Schedule referred to special condition 3, which was in the following terms:
3.     Measurement of Property and Purchase Price
The Vendor and the Purchaser agree that notwithstanding any other provision of this agreement:
(a)     on completion of the land division under special condition 6, the total area of the Property shall be surveyed by the Vendor’s appointed surveyor;
(b)     the Purchase Price will be calculated as follows:
Purchase Price = $75.00 per square metre x total area of the Property; and
(c)     the Purchaser’s solicitors will complete Items 11 and 13 of the Schedule to reflect the Purchase Price.
The Contract was conditional upon the Purchaser’s due diligence. In particular, special condition 5.1 provided:
5.1     Agreement conditional
This agreement is conditional upon the Purchaser:
(a)       undertaking or causing the Purchaser’s Consultants to undertake the Due      Diligence Audit; and
(b)     being reasonably satisfied as to the results of that Due Diligence Audit,
within the Due Diligence Period.
The Contract was also conditional upon the following matters set out in special condition 6.1:
6.1     Conditions
This agreement is conditional upon:
(a)     the Vendor becoming the registered proprietor of the Development Land;
(b) the Vendor obtaining all necessary consents and approvals required for the deposit by the Registrar-General, pursuant to Part 19AB of the Real Property Act 1886, of the Plan of Division;
(c)     the Plan of Division being deposited by the Registrar-General; and
(d)     the Environmental Resources and Development Committee of the Parliament or both Houses of Parliament authorising the Amendments to the Development Plan (DPA Authorisation),
on or before the Approval Date, or such other date as agreed between the Vendor and the Purchaser.

Plan of Division was defined to mean “a plan of division providing for the division of the Land in the same manner as is delineated on the plan attached at Annexure C, or as otherwise agreed between the parties.” Annexure C consisted of a plan that was identical to the plan in Annexure B.
Approval Date was defined to mean 31 December 2010, or such later date as may be agreed between the parties in writing.
The Vendor’s obligations in respect of the conditions were set out in special condition 6.2:
6.2     Vendor’s obligations
(a)    The Vendor must do all things necessary to become the registered proprietor of the Development Land, including, but not limited to, preparing and executing a Memorandum of Transfer, procuring the execution of the Memorandum of Transfer by the Existing Registered Proprietors, and lodging the Memorandum of Transfer at the Lands Titles Office.
(b)     The Vendor must do all things necessary to prepare the Plan of Division and obtain all approvals and consents necessary to achieve the deposit of the Plan of Division by the Registrar-General.
(c)    The Vendor must do all things necessary to achieve DPA Authorisation.
Special condition 6.4 provided for amendments to the Plan of Division and hence the Land:
6.4 Amendments
The parties acknowledge that the Plan of Division may be amended and the location of the Property may be varied by mutual agreement between the parties (acting reasonably), before the Plan of Division is deposited provided that if the location of the Property is varied all other terms of this agreement will continue in full force and effect.
Finally, special condition 6.6 set out the timing of settlement under the Contract. It provided:
6.6     Settlement
Settlement must take place on the later of:
(a)     30 November 2010; and
(b)     the date that is thirty (30) days after the later of:
(i)the Vendor becoming the registered proprietor of the Development Land;
(ii)the Registrar General accepting for deposit the Plan of Division; and
(iii)DPA Authorisation being achieved.
Subsequent events
Subsequent to entry into the Contract, Masonic Homes conducted the due diligence provided for in special condition 5. On 16 October 2009, Minter Ellison sent an email to Cowell Clarke acknowledging that the due diligence period under the Contract had expired, and that Masonic Homes wished to proceed with the purchase of the Land.
On 4 August 2010, Masonic Homes and Mr Oppedisano entered into an Amending Agreement, which amongst other things amended the Approval Date to 31 December 2013, and deleted and replaced the formula for determination of the purchase price in special condition 3(b) with the following:
(b) The Purchase Price will be calculated as follows:
Purchase Price = $75.00 per square metre x total area of the Property increased by a rate of 7.25% per annum from 30 November 2010 to the Settlement Date and calculated to the nearest day.
On 23 November 2010, the second defendant, PPR, was incorporated.
On 27 November 2013, Masonic Homes, Mr Oppedisano and PPR entered into a Supplemental Agreement, which amongst other things:
· changed the Vendor from Mr Oppedisano to PPR; and
· amended the Approval Date to 31 December 2016.
As required by special condition 6.1, PPR became the registered proprietor of the Development Land.
Between execution of the Contract and June 2015 the parties (in conjunction with various independent consultants) took various steps, including holding a number of meetings in relation to the development of the Land and the progress of the larger development.
However, since that time the parties have been in dispute as to whether the Contract is void for uncertainty. While the plaintiff (through its solicitors) has asserted that the Contract is void for uncertainty, the defendants (through their solicitors) have rejected this assertion and have stated their expectation that Masonic Homes settle on the Contract.
Contractual interpretation
Determination of the meaning of the terms of a commercial contract such as the present involves ascertaining the objective intention of the parties to the contract. This requires consideration of the language used by the parties in the context of the contract as a whole, the surrounding circumstances known to the parties and the commercial purpose or objects to be achieved by the contract.[2]
[2] Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40].
In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd,[3] French CJ, Nettle and Gordon JJ explained the approach in the following terms:[4]
The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.
Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.
However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.
Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations.
Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption “that the parties … intended to produce a commercial result”. Put another way, a commercial contract should be construed so as to avoid it “making commercial nonsense or working commercial inconvenience”.
[3] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104.
[4] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[51] (omitting citations).
The distinction between impermissible regard to the parties’ subjective intentions and expectations, and permissible recourse to objective matters (surrounding circumstances) known to the parties, has been the subject of consideration in a number of recent decisions of the High Court. In Byrnes v Kendle,[5] Heydon and Crennan JJ explained:[6]
Contractual construction depends on finding the meaning of the language of the contract – the intention which the parties expressed, not the subjective intentions which they may have had, but did not express. A contract means what a reasonable person having all the background knowledge of the “surrounding circumstances” available to the parties would have understood them to be using the language in the contract to mean. But evidence of pre-contractual negotiations between the parties is inadmissible for the purpose of drawing inferences about what the contract meant unless it demonstrates knowledge of “surrounding circumstances”. And in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd this Court said:
“It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.”
[5] Byrnes v Kendle (2011) 243 CLR 253.
[6] Byrnes v Kendle (2011) 243 CLR 253 at [98] (omitting citations).
Thus, evidence of prior negotiations will be admissible and relevant insofar as it tends to establish background facts that were known to both parties. This may include identification of the subject of the contract.[7] On the other hand, such evidence is not relevant insofar as it consists merely of statements and actions of the parties which are reflective of their actual or subjective intentions and expectations.
[7] White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266 at 271; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [15].
Contractual uncertainty
For a contract to be binding and enforceable it must be sufficiently certain. It must be clear and complete in its essential terms. If a contract is uncertain, then it is void unless the uncertain part can be severed, leaving the balance of the agreement intact.
As the High Court explained in Thorby v Goldberg:[8]
It is a first principle of the law of contracts that there can be no binding and enforceable obligation unless the terms of the bargain, or at least its essential or critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by a future agreement of the parties. Again, there is no binding contract where the language used is so obscure and incapable of any precise or definite meaning that the court is unable to attribute to the parties any particular contractual intention.
[8] Thorby v Goldberg (1964) 112 CLR 597 at 607.
It is sometimes said there are two broad categories or types of uncertainty: where an agreement is unclear (by reason of a term or terms being vague, ambiguous, contradictory or meaningless), and where an agreement is incomplete. However, in practice these categories often overlap or merge, particularly in cases where it is envisaged that the subject matter of the contract will be determined or refined by reference to further steps agreed between the parties. In this context it is often said that while an agreement to agree is not enforceable, an apparently uncertain contract may be enforceable if the parties have agreed upon a mechanism to resolve the apparent uncertainty.[9]
[9] Taluja v Shree Shirdi Sai Sansthan Sydney Ltd [2016] NSWCA 158 at [50]-[51].
In considering whether a contract is void for uncertainty, there is a tension between, on the one hand, a desire to uphold bargains made in good faith, and on the other hand, a desire to leave it to the parties to determine their rights and obligations (rather than substituting the court’s view as to those matters). The courts have in the past sometimes taken a strict approach to the issue of uncertainty. However, in more modern times the balance has tended to favour a more flexible approach, with the courts generally striving to uphold commercial bargains.[10] Reflecting the business-like approach to the interpretation of commercial contracts, the courts will construe the terms of an agreement with an inclination to give effect to the intention of the parties, even if that intention has been obscurely expressed.
[10] Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 at 436-437 per Barwick CJ; Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 at 135; Ipex Software Services Pty Ltd v Hosking [2000] VSCA 239 at [56]; Mainteck Services Pty Ltd v SteinHeurtey SA (2014) 89 NSWLR 633 at [55]-[56]; Brice v Chambers [2014] QCA 310 at [139]-[140]; Taluja v Shree Shirdi Sai Sansthan Sydney Ltd [2016] NSWCA 158 at [52].
As Eames AJA (with whom Batt JA relevantly agreed) explained in Ipex Software Services Pty Ltd v Hosking:[11]
Where there is such an intention between parties to an agreement the court will, if possible, give effect to that intention by overcoming difficulties said to arise from uncertainty or incompleteness. Where businesspeople have reached agreement between themselves the courts should be slow to conclude that the words they have used, “considered however broadly and untechnically and with due regard to all the just implications, fail to evince any definite meaning on which the court can safely act”. The mere fact that the person seeking to enforce the agreement may have been improvident in the terms in which he permitted the agreement to be couched, and that the form of words adopted may allow the other party a latitude of choice as to the manner in which the stipulation will be carried into effect does not render the agreement void. Nor does the fact that there may be more than one interpretation of what was meant render the agreement void for uncertainty; so long as the relevant term is capable of being assigned a meaning then the meaning is that which the court so assigns it. The task of the court is to ascertain the intention of the parties and in so doing “no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements”.
The last sentence of this extract reflects the approach articulated in the following terms by Barwick CJ in Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd:[12]
But a contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not therefore void for uncertainty. As long as it is capable of meaning … the court … will decide its application … no narrow or pedantic approach is warranted …
[11] Ipex Software Services Pty Ltd v Hosking [2000] VSCA 239 at [56] (omitting citations).
[12] Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 at 436-437.
A contract will not be void for uncertainty merely because it leaves one party a latitude of choice as to the manner in which agreed stipulations shall be carried into effect. Put another way, the parties may agree an obligation to do a thing of a general description, but leave it to the party who is to perform it to choose the particular thing that he or she will do in performance of it.[13]
[13] Thorby v Goldberg (1964) 112 CLR 597 at 605, 613.
Courts are particularly reluctant to conclude that a contract is uncertain in circumstances where it has been partly performed and is therefore no longer executory.[14] As Latham CJ noted in York Air Conditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth:[15]
When the parties have shown by their conduct that they understand and can apply the terms of a contract without difficultly, a court should be very reluctant indeed to pay no attention to such conduct by holding that the terms of the contract are unintelligible by reason of uncertainty.
[14] Taluja v Shree Shirdi Sai Sansthan Sydney Ltd [2016] NSWCA 158 at [52].
[15] York Air Conditioning and Refrigeration(A/sia) Pty Ltd v The Commonwealth (1949) 80 CLR 11 at 53.
The techniques available to support the inclination to uphold contracts that have been poorly drafted include the courts’ preparedness to interpret and interpolate so as to give effect to the parties’ apparent objective intentions, and the use of implied terms. Extrinsic evidence, subject to the restrictions identified earlier in these reasons, may also be used to clarify ambiguities or establish the background and evident purpose of the agreement.
That said, where the position remains that the parties have simply not agreed upon the content of essential terms, and have not agreed upon either the application of some objective standard to measure their obligations or a mechanism to fix the content of essential terms, the role of the courts does not extend to foisting upon the parties a bargain which they have not made.[16] The mere fact that the parties intend what they have agreed to be binding does not always mean that that intention is achieved.
[16] Australian Securities and Investments Commission v Fortescue Metals Group Ltd (2011) 190 FCR 364 at [123].
Uncertainty in contracts relating to land
While the uncertainty must relate to an essential term for it to render a contract void, in a contract for the sale of the land, the subject matter of the contract (the land to be sold) and the price are essential terms.[17]
[17] Hall v Busst (1960) 104 CLR 206 at 222.
In Goldsworthy Mining Ltd v Commissioner of Taxation (Cth),[18] Mason J considered the requirement for certainty in the description of property demised under a lease, and found that requirement to be satisfied “if the description is one which enables the boundaries of the property to be ascertained or identified.”
[18] Goldsworthy Mining Ltd v Commissioner of Taxation (Cth) (1973) 128 CLR 199 at 211.
The parties in the present case relied upon two cases illustrating the principles governing contractual uncertainty with some factual analogy to the present case: Equuscorp Pty Ltd v Belperio[19] and Taluja v Shree Shirdi Sai Sansthan Sydney Ltd.[20]
[19] Equuscorp Pty Ltd v Belperio [2006] VSC 14, and on appeal Equuscorp Pty Ltd v Antonopoulos [2008] VSCA 179.
[20] Taluja v Shree Shirdi Sai Sansthan Sydney Ltd [2016] NSWCA 158.
In Equuscorp Pty Ltd v Belperio[21] the defendants (Mr Belperio and Mr Antonopoulos), together with a number of other people, invested in a scheme promoted by Seymour Softwoods Ltd entitling them to participate in the profits that might arise from harvesting pine trees in certain plantations in New South Wales, and to obtain tax deductions in respect of the sums contributed. Investors were granted leasehold interests in individual lots of land within the plantations. Following a series of assignments, one of the plaintiffs became the lessor under the various leases granted to investors. At trial, an issue between the parties was whether the land the subject of the leases granted to the defendants was sufficiently identified to avoid a conclusion that the leases were void for uncertainty.
[21] Equuscorp Pty Ltd v Belperio [2006] VSC 14.
The uncertainty asserted by the defendants was based upon a contention that the leases did not contain a sufficient description of the boundaries of the land in each lease to enable the land to be located with the requisite precision for an enforceable lease. The leases described the land in the following terms:[22]
All that land delineated and coloured green on the plan to be annexed hereto but nevertheless being an area of 2.00 hectares and being part of the plantation.
[22] This description relates to the land leased by Mr Antonopoulos, but the land leased by Mr Belperio was in very similar terms.
The annexures to Mr Belperio’s and Mr Antonopoulos’ leases contained plans that were different from one another in several respects, but each showed the area of land constituted by the relevant plantation (the Birmaroo and Ardsley plantations respectively), divided into several hundred lots. The lots were individually numbered. Most were rectangular in shape, but others were irregular in shape. For example, in the case of the Birmaroo plantation, those that were adjacent to the creeks shown running through that plantation were irregular in shape. The plans both had an arrow depicting north, and stated that the scale was 1:10,000. On ‘the Belperio plan’, lot 257 was shaded in green. On ‘the Antonopoulos plan’, lot 304 was shaded in green. Lot 257 was irregular in shape, and lot 304 was rectangular in shape.

Some time after Mr Antonopoulos had invested, he was provided with an amended plan which reallocated the lots. In substitution for lot 304, he was allocated lot 64. He was provided with a further plan (‘the amended Antonopoulos plan’) in a similar form (but without an arrow depicting north or any scale) that showed lot 64. Lot 64 was in a different location to lot 304, and was irregular in shape. The trial judge found that Mr Antonopoulos, through his conduct, agreed to the variation in the description of the land the subject of his lease.
In support of their contention that the descriptions of the leased land did not enable the boundaries of the land to be clearly identified, the defendants adduced evidence from Mr Borough, a forester. Mr Borough explained that the land demised under the leases was not able to be ascertained with certainty from the plans annexed to the leases, or the amended Antonopoulos plan. The reasons for this were that the plans included no bearings at any specific reference point (for example, the corner of either plantation), contained no measurements of either individual lots or the whole of one or more sides of either plantation, and contained a scale that had been rendered inaccurate through reduction and photocopying of the plans (and no scale at all in the case of the amended Antonopoulos plan). According to Mr Borough, the best he could do was to locate the boundaries of the leased lots to within plus or minus 100 metres. Even this degree of accuracy required recourse to extrinsic materials, including aerial photographs, topographic maps, readings from a GPS device and digital data of the measurements of the relevant title boundaries.
The plaintiffs, on the other hand, contended that it was sufficient that the land was capable of being identified by a professional surveyor. To this end, it adduced evidence from a licensed surveyor, Mr Grant. He had prepared the plans annexed to the leases showing the location of the various lots, including the land the subject of the defendants’ leases. While his evidence was that plans allocating the plantation land to the various investors could be prepared using the plans provided to the defendants “as a starting point”, Mr Grant acknowledged that his plans were not sufficiently accurate to enable a subdivision to be approved, and that he contemplated the preparation of a more accurate plan following the making of a final survey. More importantly, Mr Grant conceded, and the trial judge found, that another surveyor could not locate the defendants’ lots solely by reference to the plans annexed to the defendants’ leases.
Based upon this concession and finding, and after referring to the general principles set out in Thorby v Goldberg[23] and Goldsworthy Mining Ltd v Commissioner of Taxation (Cth),[24] Hargrave J concluded that the leases were void for uncertainty. Further, as his Honour explained, the uncertainty was not cured by the evidence of Mr Grant:[25]
The plaintiffs rely on the evidence of Mr Grant to establish that the land leased to the defendants is capable of ascertainment or identification. I do not accept the plaintiffs’ submissions in this regard. The requirement described by Mason J in Goldsworthy is clearly that the land demised must be capable of ascertainment or identification by reference to the description of the land in the lease. It is not sufficient that the land in question is capable of ascertainment by a surveyor or other expert by reference to material extrinsic to the lease and further surveying work. In this case the descriptions of the land leased to the defendants did not enable the boundaries of the lots demised under those leases to be ascertained or identified. It follows that the descriptions of the land demised under the leases were uncertain.
[23] Thorby v Goldberg (1964) 112 CLR 597 at 606-607.
[24] Goldsworthy Mining Ltd v Commissioner of Taxation (Cth) (1973) 128 CLR 199 at 211-212.
[25] Equuscorp Pty Ltd v Belperio [2006] VSC 14 at [206].
Thus, while lots could be identified through further survey work, this did not cure the uncertainty because that survey work was not contemplated or required by the lease.
Hargrave J rejected a further contention by the defendants to the effect that the nature of the contractual arrangements was such that identification of the precise lots did not matter, and that the plans provided sufficient certainty for the purposes of the parties’ bargain. His Honour also rejected a contention to the effect that the performance of the defendants’ obligations to date indicated that the leases were capable of performance in their existing form.[26]
[26] Equuscorp Pty Ltd v Belperio [2006] VSC 14 at [218]-[225].
On appeal, the Victorian Court of Appeal (per Buchanan JA, with whom Dodds-Streeton JA and Osborn AJA agreed), upheld Hargrave J’s reasoning and conclusion on the issue of uncertainty, and dismissed the appeal.[27]
[27] Equuscorp Pty Ltd v Antonopoulos [2008] VSCA 179.
In the second decision relied upon by the parties, Taluja v Shree Shirdi Sai Sansthan Sydney Ltd,[28] the plaintiff (Dr Taluja) was the registered proprietor of some land in Sydney. The land contained various buildings, including a chapel. The plaintiff granted the defendant a lease over a portion of the land. The lease did not identify the precise area which the defendant was entitled to occupy. It described the area in the following terms:
Being 420 Liverpool Road, Strathfield NSW as shown as the hatched area in the plan annexed and marked Annexure “B” and being the Memorial Chapel and surrounding 800 square metres of land
[28] Taluja v Shree Shirdi Sai Sansthan Sydney Ltd [2016] NSWCA 158.
The attached Annexure B comprised a plan of the land. The plan included a small hand drawn rectangle, with the words “Memorial Chapel” handwritten next to it. But the plan did not include any hatched area, and the chapel was not within the area marked on the plan.
The lease included the following provisions requiring that the plaintiff prepare a final plan, and providing for expert determination of any disagreement in connection with the plan:
PLAN
9.We and You agree that the total area of the land shall be eight hundred (800) square metres. The Plan is only an approximate plan and the area shall be surveyed and a final plan shall be prepared by Us at Your expense within a reasonable time. We agree to provide necessary assistance and facilities in this respect.
DISPUTE RESOLUTION
10.1If any disagreement arises in connection with the Plan either We or You may refer the disagreement to expert determination by an Expert appointed by the President of the Institute of Surveyors to the intent that the final plan shall consist of eight hundred (800) square metres.
10.2The Expert’s decision will be final, conclusive and binding on the parties and the costs of the expert determination must be borne by the party or parties who the expert determines is or are to bear the costs.
The trial judge rejected the plaintiff’s contention that the lease was void for uncertainty. On appeal, the New South Wales Court of Appeal (per Sackville AJA, with whom McColl and Leeming JJA agreed) upheld this conclusion.
Sackville AJA summarised the relevant legal principles in terms consistent with my earlier summary of those principles. His Honour added:[29]
A lease of land, in order to be valid, must describe the demised premises in a manner that is certain or enables the boundaries to be identified and ascertained with certainty. A lease satisfies the requirement that the demised land must be identified or identifiable if the lease provides for a third party, or even one of the parties to the lease, to determine the precise boundaries of the land. The general principle is that a contract, including a lease, is not invalid because an essential term remains to be determined, provided that the determination does not depend on further agreement between the parties.
[29] Taluja v Shree Shirdi Sai Sansthan Sydney Ltd [2016] NSWCA 158 at [50]-[51] (omitting citations).
His Honour explained that while the plan in Annexure B did not include the hatched area mentioned in contractual description of the area of the leased land, nevertheless the terms of the lease made it clear that the area was to be 800 m², was to include the chapel with the balance of the area surrounding the chapel, and was to extend over two particular identified lots. His Honour added that clause 9 reaffirmed that the total area was to be 800 m², and that the plan in Annexure B was only intended to be approximate, with a survey and final plan to be prepared by the plaintiff within a reasonable time. Further, clause 10.1 provided for an expert to determine any disagreement between the parties as to the final plan.
His Honour concluded that the lease, by providing for the plaintiff to undertake a survey and prepare a final plan, established a mechanism that enabled the location and dimensions of the leasehold land to be ascertained without further agreement between the parties, and was therefore valid.
Evidence of Mr Pohl
The plaintiff in these proceedings relied upon an expert report obtained from a surveyor, Mr Pohl. Mr Pohl was asked to determine the boundaries and area of the rectangle depicted in the plan in Annexure B to the Contract.
Mr Pohl’s report explained that as the scale bar and dimensions of allotments 4 and 5[30] on the plan were barely legible, he purchased Lands Titles Office DP 45110, which was the source of the Certificate of Title Volume 5346 Folio 756 that had been copied to create Annexure B. From this, Mr Pohl was able to confirm that the scale was 1:8000.[31] Mr Pohl’s comparison of the plan with the Certificate of Title also revealed a northerly distortion in the plan relative to the Certificate of Title of about 3 per cent.[32]
[30] Allotments 4 and 5 together constitute the Development Land.
[31] As this scale could be derived from the plan in annexure B, I do not consider that its use involved recourse to extrinsic materials that it would be impermissible to use in construing the Contract.
[32] Which resulted in a difference for the north/south length of the entire Development Land (allotments 4 and 5) of about 45 metres, but significantly less for the north/south length of the Land.
In determining the boundaries of the rectangle depicted on the plan, Mr Pohl used a 1:400 graduated ruler to measure and scale distances, thus resulting in rounding of plus or minus 5 metres. He used a 23 centimetre protractor, measuring angles to the nearest half a degree (or 30 minutes).
Using the scale of 1:8000, and measurements as described in the preceding paragraph, Mr Pohl’s calculations produced a figure that did not mathematically close. Noting that this was to be expected due to the scaling limitations, Mr Pohl applied the “commonly used Bowditch adjustment” to the scaled dimensions to remove (in a manner involving proportional adjustments to the boundaries and angles) the misclosure.[33] Mr Pohl’s calculations produced a scaled version of the rectangle shown in the plan, with an area of 4.24 hectares.
[33] The adjustments to the boundaries were between 0.51 metres and 1.68 metres.
Mr Pohl added that if one were to factor in the plus or minus 5 metres rounding in the measurements he used, then the area of the rectangle was between 4.04 hectares and 4.46 hectares.
Mr Pohl added that his calculation assumed the rectangle was drawn on a version of the plan that already contained the northerly distortion. If, on the other hand, he were to assume that the distortion occurred after the rectangle was drawn on the plan, then correction for this would result in reduced dimensions and an area of 4.16 hectares. In oral evidence it was confirmed that the distortion existed in the version of the plan annexed to the original version of the Contract.
Mr Pohl was also asked whether the plan in Annexure C[34] provided sufficient information to prepare a plan of division. Mr Pohl explained that a plan of division was required to show dimensions for every boundary line to the nearest 0.01 metre[35] for distance and 10 seconds for angle. He explained that when preparing a plan of division to create two new allotments, the following information was required:
·    full dimensions (distance and angle) for at least one of the allotments to be created;
·    an area for at least one allotment, together with information sufficient to define the shape or boundaries; or
·    instructions permitting definition of the boundary positions of at least one allotment.
[34] Which is the same as the plan in Annexure B.
[35] Materials provided to me suggests that in a commercial context such as the present, distances must be shown to the nearest 0.005 metre (5 mm). But nothing turns on this difference.
Based on Mr Pohl’s consideration of the plan in Annexure C, and in particular a stated area of “4 ha Indicative Only”, and a depiction of an approximate area consisting of a four sided figure using two existing boundaries and two proposed boundaries (but all without dimensions), Mr Pohl concluded that it was not possible to prepare a plan of division with the specificity of dimensions required.
It is apparent from the above, and from answers given by Mr Pohl during the course of his cross-examination, that he proceeded on the basis of an assumption that the reference to “4 ha Indicative Only” on the plan meant not only that the hand drawn boundaries were indicative only, but also that the area of 4 hectares was also indicative rather than agreed by the parties. In other words, he assumed that the area (and not just the depiction of it) was intended to be indicative only. Under cross-examination, Mr Pohl accepted that if he were required to do so, it would be possible to adjust the dimensions of the boundaries of the rectangle (and, it would seem, to do so proportionately to the rectangle depicted on the plan) to arrive at an area of precisely 4 hectares.
I accept the evidence of Mr Pohl. However, given that his work was confined to preparing a scaled version of the rectangle depicted in Annexure B (as opposed to an attempt to conduct a survey of the relevant area), and the assumption he made to the effect that the area of 4 hectares was only indicative, the direct relevance of his evidence was limited. The use I have made of his evidence is apparent from the balance of my reasons.
Construction of the Contract
As mentioned at the outset of these reasons, the plaintiff contends that the Contract is uncertain as to the area and dimensions of the Land, as they are not able to be ascertained from the terms of the Contract without further agreement between the parties. As the purchase price is to be determined by reference to a formula dependent upon the area of the Land, it is also uncertain.
In rejecting the suggested uncertainty, the primary construction contended for by the defendants (the defendants’ primary construction) is that the parties agreed that:
·    the Land is a 4 hectare parcel of land located at Lot 5, Main North Road, Roseworthy, being a portion of Certificate of Title Volume 5346 Folio 756;
·    the location of the Land is as depicted by the hand drawn rectangle in Annexure B to the Contract, albeit the precise dimensions, and therefore precise location, would be determined by the survey provided for in special condition 3 (and be able to be moved by agreement pursuant to special condition 6.4); and
·    the price payable by Masonic Homes for the Land is $3 million, calculated pursuant to the formula contained in special condition 3 of the Contract.
The defendants emphasise the courts’ general inclination to strive to uphold commercial bargains, as expressed and demonstrated in the authorities mentioned earlier in these reasons. As the defendants point out, the authorities make it plain that a narrow or pedantic approach is not appropriate.
The defendants also emphasise the approach articulated by Barwick CJ in Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd,[36] which involves recognition that the capacity for a contract to bear more than one meaning does not mean it is void for uncertainty. As long as it is capable of meaning, then a court should determine and give effect to that meaning.
[36] Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429.
To this end, the defendants also point to two alternative constructions to which effect might be given before resorting to a conclusion that the Contract is void. The first of these (the defendants’ second construction) was articulated in the following terms:
· the Land is an approximately 4 hectare piece of land located at Lot 5, Main North Road, Roseworthy, being a portion of Certificate of Title Volume 5346 Folio 756, with the precise boundaries, and therefore the exact area, to be determined by the survey provided for by special condition 3; and
· the price payable by Masonic Homes for the Land is to be determined pursuant to the formula contained in special condition 3 once the precise dimensions of the Land has been determined by the Vendor’s survey.
This construction is similar to the defendants’ primary construction. The difference is that it attaches less significance to the parties’ reference to an area of 4 hectares, and attaches greater significance to (or affords greater work to be done by) the survey to be carried out by the Vendor’s surveyor as a contractual mechanism for fixing the precise boundaries and area of the Land.
The second alternative construction identified by the defendants (the defendants’ third construction) was as follows:
· the Land is the piece of land marked by the hand drawn rectangle in Annexure B, with the size of the Land determined by the scale in Annexure B; and
· the price payable by Masonic for the Land is to be calculated in accordance with the formula contained in special condition 3, once the area of the hand drawn rectangle has been determined by the survey of the Vendor’s surveyor envisaged by clause 3.
The defendants’ third construction differs from the others in that it affords primacy to the hand drawn rectangle on the plan in Annexure B.
In my view, the defendants’ primary construction should be accepted. Having regard to the terms of the Contract, and adopting a business-like approach that reflects the commercial purpose of the Contract, I consider that this construction reflects the parties’ objective intention.
There is no doubt the parties intended to enter into a legally binding agreement to transfer a parcel of land, being a portion of the Development Land to be acquired by the Vendor. It is also clear that they intended that this parcel of land be in the south eastern corner of the Development Land (ie the south eastern corner of Lot 5 Main North Road, Roseworthy, being a portion of Certificate of Title Volume 5346 Folio 756).
However, in my view, the Contract reflects an objective intention to agree more than this. Having regard to the definition of the Land, and hence by reference to the hand drawn rectangle on the plan in Annexure B to the Contract, it is apparent that the parties intended that the Land have an area of 4 hectares. It is also apparent that the parties intended not only that the Land be located in the place depicted by the hand drawn rectangle (the south eastern corner of Lot 5), but also that its boundaries and dimensions would be generally in accordance with (or as indicated by) the hand drawn rectangle.
It is significant in this respect that the rectangle was more than simply a general marker of the intended location of the Land. The rectangle was intended to be of greater significance than, for example, the hand drawn rectangle placed on the plan annexed to the contract in Taluja v Shree Shirdi Sai Sansthan Sydney Ltd. As the evidence of Mr Pohl demonstrated, the rectangle in this case was drawn with a significant level of precision. The plan itself was a copy of the Certificate of Title relating to the Development Land (albeit slightly distorted), meaning that it contained various reference points that were capable of being precisely identified through a survey – including the boundaries with Section 80 and Main North Road, which formed the southern and eastern boundaries of the hand drawn rectangle. The plan also contained distance markings that enabled its scale to be determined. When the hand drawn rectangle was scaled in accordance with the distance markings on the plan, the area was very close to 4 hectares. Mr Pohl arrived at an area of 4.24 hectares, adding that allowing for rounding the area depicted was between 4.04 hectares and 4.46 hectares.

I do not regard the misclosure of the hand drawn figure identified by Mr Pohl to be of any significance in this respect. As he observed, the scaling limitations he identified meant that misclosure was to be expected, and could be readily addressed through a proportional adjustment of the dimensions and angles (referred to by Mr Pohl as a “commonly used Bowditch adjustment”). Properly understood, the misclosure is not inconsistent with the hand drawn rectangle being drawn with a level of precision suggestive of it being more than merely a general marker of location.
At the same time, it is my view (contrary to the defendants’ third construction) that the parties did not intend the hand drawn rectangle to be determinative. As Mr Pohl’s evidence demonstrated, this would leave an area of uncertainty given the scaling limitations. More importantly, it would give no work to do to the words “Indicative Only” written on the rectangle in Annexure B.
In my view, the inclusion of those words on the rectangle in Annexure B suggests that while it was intended to be of greater significance than a general marker, it was not intended to be determinative. The parties intended that the rectangle inform and guide the task of the Vendor’s surveyor in identifying the precise boundaries and dimensions of the Land, and in that sense be an indication of, but not entirely determinative of, the boundaries and dimensions of the Land.
The role of the Vendor’s surveyor is confirmed by the special condition 3(a) mandate that the total area of the Land “shall be surveyed by the Vendor’s appointed surveyor”. It is significant that this provision immediately precedes the special condition 3(b) articulation of the formula by which price is to be determined, making it clear that it is the area as surveyed by the Vendor’s surveyor that is to govern the determination of price. This supports a construction to the effect that it is the survey work performed by the Vendor’s surveyor that will ultimately be determinative of the precise boundaries and dimensions of the Land, and hence also the price to be paid.
The terms of special condition 3(a) suggest that the survey conducted by the Vendor’s surveyor will occur following completion of the land division under special condition 6. This is curious because completion of the land division under that special condition requires that the Vendor do all things necessary to prepare the Plan of Division, and obtain the approvals and consents necessary to achieve the deposit of the Plan of Division by the Registrar-General. Achievement of these matters would require a survey of the Land. Taken literally, the requirement in special condition 3(a) that the Vendor’s surveyor undertake his or her work after completion of the land division would thus require that a second survey be undertaken. I do not think a second survey would be required. In my view, this would be to adopt too narrow or pedantic a view of the parties’ articulation of their agreement. If the Vendor’s surveyor has surveyed the Land for the purposes of completing the land division, then there is no reason why that work could not simply be adopted for the purposes of determining the ultimate boundaries and dimensions of the Land for the purposes of special condition 3(a), and hence for the ascertainment of the price agreed between the parties in special condition 3(b).
In my view, the rationale for, and intention behind, the express reference to the survey to be undertaken by the Vendor’s surveyor in special condition 3(a) is to emphasise the parties’ agreement not only that this work will be carried out, but also that it will be the determinant of the precise boundaries and dimensions, and hence price, agreed by the parties. Put another way, the parties have agreed that the precise boundaries and dimension, and hence price, will (in the language of Mason J in Goldsworthy Mining Ltd v Commissioner of Taxation (Cth)[37]) be ascertained by the survey to be carried out by the Vendor’s surveyor.
[37] Goldsworthy Mining Ltd v Commissioner of Taxation (Cth) (1973) 128 CLR 199 at 211.
It does not follow from this that the Vendor’s surveyor has a free reign in determining the boundaries and dimensions of the Land. To the contrary, the task of the Vendor’s surveyor will be substantially, if not entirely, controlled by the parties’ agreement that the Land be 4 hectares and generally in accordance with the dimensions of the rectangle in the plan in Annexure B. Presumably this will commence with a scaling task akin to the task undertaken by Mr Pohl, but by reference to the reality on site. This will involve identification of the southern and eastern boundaries, which Mr Pohl accepted would be possible. The other two boundaries will then be determined using the hand drawn boundaries as a starting point, and then making proportional adjustments to arrive at an area of 4 hectares. As the work of Mr Pohl demonstrated, it is to be expected that the hand drawn boundaries will produce an area close to 4 hectares. However, some minor adjustments will likely be necessary. The most obvious method of adjustment will be to make adjustments in proportion to the dimensions of the hand drawn rectangle to the extent necessary to arrive at an area of 4 hectares. Mr Pohl’s evidence suggests that by adopting this methodology it should be possible to achieve an area of precisely 4 hectares, or something so close to 4 hectares for the difference to be of no significance. While it is possible that the exigencies of the site, as revealed by the survey work once carried out, will require some minor variation to the final area of 4 hectares, there is no reason to think that such exigencies will be of any great significance and cannot be readily resolved by the Vendor’s surveyor. Similarly, to the extent that the distortion Mr Pohl found to exist in the plan affects the task of proportional adjustments, I consider this to be a matter of minor significance that is capable of being resolved by the Vendor’s surveyor.
While dependent on the work of the Vendor’s surveyor, this methodology leaves little room if any for the discretion of the Vendor’s surveyor. To the extent there is any discretion afforded to the Vendor’s surveyor in determining the adjustments to be made, and in working through any exigencies that may arise, the Vendor’s surveyor will no doubt be subject to an implied obligation to act reasonably in giving effect to the plan in Annexure B. Against this background, and bearing in mind the parties’ express intention in special condition 3(a) that the Vendor’s surveyor carry out a final survey of the Land prior to the determination of price, I do not consider that the extent of input from that surveyor is productive of unintended, let alone unworkable, uncertainty.
The plaintiff contends that a construction of the Contract that confers upon the Vendor’s surveyor any ability or latitude to make adjustments should be rejected. In so contending, the plaintiff argues that the task of the Vendor’s surveyor in special condition 3(a) must reflect the task of the surveyor under special conditions 6.1 and 6.2. That task involves carrying out a survey to prepare the Plan of Division, which, as the plaintiff points out, is defined by reference to the plan in Annexure C (which, in turn, mirrors the plan in Annexure B). The plaintiff contends that this closes the loop, so to speak, such that the task of the Vendor’s surveyor is entirely circumscribed by the plan in Annexures B and C, and does not permit of any discretion or latitude to make adjustments or variations.
In my view, this involves too narrow or pedantic an approach to the construction of the Contract. It also overlooks the fact that if, as I have concluded, the plan in Annexure B permits (and, indeed contemplates, if not requires) some adjustments and variations by the Vendor’s surveyor, then there is no reason that the plan in Annexure C would not permit the same. I consider there is some analogy with Taluja v Shree Shirdi Sai Sansthan Sydney Ltd, in which it was held that the contractual requirement that a survey be undertaken reflected an intention to agree a mechanism for resolution of the (far greater) uncertainty that would otherwise have existed as to the location of the land in that case.
In reaching a conclusion that the parties intended the primary construction contended for by the defendants, I have not overlooked the inclusion of the words “Indicative Only” on the rectangle in the plan. In my view those words were intended to convey merely that the depiction of the Land by the rectangle was intended to be indicative rather than determinative. By permitting the precise boundaries and dimensions to be determined by the Vendor’s surveyor, but guided and controlled by the depiction as I have described, I consider that this gives effect to the words “Indicative Only”. The ultimate boundaries and dimensions of the Land will in all likelihood be very similar to, but slightly different from, those depicted in the plan.
The plaintiff contends that the words “Indicative Only” apply not only to the depiction, but also to the reference to 4 hectares. While this construction of those words is open, in striving to uphold the parties’ bargain as the authorities suggest I should, I do not consider this to be the preferable construction. In my view, the reference to 4 hectares in the rectangle suggests an intention that the area is intended to be 4 hectares, subject only to the possibility of the surveying exigencies (and any variation agreed by the parties) that I have mentioned. While this means that the 4 hectares is, in a very limited sense, indicative only, I consider that the real work to be done by those words is in relation to the depiction of the Land rather than the reference to 4 hectares.
In passing, I observe that this is the key to understanding the difficulties encountered by Mr Pohl. In expressing his conclusion that the diagram did not enable sufficient precision to prepare a plan of division, he assumed not only that the depiction of the Land was intended to be “Indicative Only”, but also that the area of 4 hectares was intended to be “Indicative Only”. The effect of his evidence during cross-examination was that if he were given a fixed area (ie 4 hectares) then he could, by making (proportional) adjustments to the boundaries depicted by the rectangle in the plan, carry out a survey that would have the precision required in a Plan of Division.
I have also not overlooked the significance of the parties’ use of a formula to determine the price of the Land. The plaintiff contends that if the parties had intended by the reference in the plan to an area of 4 hectares to fix the area, then there would have been no reason to resort to a formula to determine the price. Put another way, the plaintiff contends that the use of a formula to determine price is an indication that the parties had not agreed, and did not intend to agree, the area of the Land. Even if there was no other work to be done by the formula, I do not consider that its use would be decisive in construing the Contract. The use of a formula, when a precise figure might otherwise have been used, may simply reflect the way the negotiations unfolded, with the parties’ determination of the price having been arrived at by reference to an agreed value per square metre.
That said, in the circumstances of the present Contract, the formula will have other work to do in two circumstances. The first is in the event that the exigencies of the survey to be carried out by the Vendor’s surveyor require some (in all likelihood very minor) departure from an area of 4 hectares. The second is in the event that the parties agree to alter the boundaries or area in accordance with special condition 6.4.
Finally, I note the plaintiff’s submissions in relation to the Vendor’s obligation under special condition 12.1(a) to prepare the Structure Plan. The Structure Plan is defined to mean:
the plan delineating the location and relationship of the retirement village site that the Lessee proposes to construct on the Property to the Retail Development, the service centre, the roads and transport facilities and all other infrastructure to be erected on the Development Land as part of the Development (prepared in consultation with the Purchaser).
The plaintiff relies upon the Structure Plan as an indication that the parties did not intend to agree the location or boundaries, but rather intended to await the progress of the work done in relation to the overall development before determining where to locate the plaintiff’s proposed retirement village. In my view, this involves reading too much into the obligation to prepare the Structure Plan. I do not accept that the fact of this work, and its relationship to the retirement village the plaintiff intended to establish, undermines the construction that I have concluded should be given to the Contract. To the extent that the work undertaken in connection with the Structure Plan, or in connection with the development more generally, suggested that a varied or different location for the retirement village might occur, this is precisely the type of scenario that the special condition 6.4 provision for agreed variations to the location of the Land contemplated. The possibility of such variations does not, in my view, undermine the appropriateness of the defendants’ primary construction.
It is for these reasons that I have concluded that the relevant provisions of the Contract should be construed in accordance with the defendants’ primary construction and is not void for uncertainty. While the exigencies of the survey work to be carried out by the Vendor’s surveyor in determining the precise dimensions and locations of the Land may require some minor adjustment to the area and hence price, I do not regard this possibility as a matter of any practical significance. I do not regard it as undermining the certainty that exists under the defendants’ primary construction.
As I have observed, there is not much difference between the defendants’ primary construction and their second and third constructions. The difference lies in the significance to be attached to the reference to 4 hectares on the plan. The defendants’ primary construction, and the conclusion I have reached, treats this as more than a mere or general indication of the intended area. It treats it as the area of the Land intended to be transferred, subject only to the surveying exigencies I have identified, or any agreement to vary the area of the Land pursuant to special condition 6.4. For the reasons I have explained, I consider this to be the preferable construction.
Under the defendants’ third construction, the boundaries of the hand drawn rectangle would govern the surveyor’s task. Primacy would be afforded to the hand drawn boundaries rather than the area of 4 hectares. Under this construction, I would expect the Vendor’s surveyor to undertake a task similar to that undertaken by Mr Pohl but following a survey in the field rather than merely a scale diagram. While this would likely result in an area other than 4 hectares (but probably within the range of 4.04 and 4.46 hectares indicated by Mr Pohl’s calculations), the formula in special condition 3(b) would enable the price to be ascertained. This approach would afford some latitude to the surveyor in determining the adjustments to be made in order to prepare at a survey of the Land with sufficient precision. But I would not regard this as giving rise to unworkable uncertainty.
The defendants’ second construction is something of a halfway house between the defendants’ primary and third constructions. By not affording primacy to either the area of 4 hectares (contrary to the defendants’ primary construction) or the hand drawn boundaries (contrary to the defendants’ third construction), greater latitude is afforded to the Vendor’s surveyor to adjust the area and boundaries so as to arrive at the ultimate boundaries and dimensions of the Land. But again, given the guidance (if not constraints) provided by the plan, I am not satisfied there would be a fatal level of uncertainty.
Under any of the three constructions contended for by the defendants, but in particular the defendants’ primary construction, I consider there to be greater certainty than existed in Equuscorp Pty Ltd v Belperio. In that case, there was no scale on the amended Antonopolous plan, the scale on the other two plans was found to be inaccurate, and there were no relevant reference points that could be objectively determined through a survey. Further, the boundaries of the lots of the defendants in that case were dependent upon the boundaries of other adjacent lots which were in turn not able to be objectively determined. By way of contrast, in the present case, the plan used a copy (albeit slightly distorted) of the Certificate of Title for the Development Land. By reason of this, and the use of the southern and eastern boundaries of the Development Land in the depiction of the Land in the plan, there were reference points that could be objectively verified by a surveyor. In particular, the south eastern corner could be identified, as could the location (as opposed to precise length) of the eastern and southern boundaries. It is also significant that in the present case the rectangle was drawn so as to mark out an area which, when scaled, corresponded very closely to the contemplated area of 4 hectares. There was no finding to this effect in Equuscorp Pty Ltd v Belperio.
The plan in this case also provided far greater certainty than the plan in Taluja v Shree Shirdi Sai Sansthan Sydney Ltd, which was no more than a general (and indeed somewhat inaccurate) marker of where the subject land would be located. In that case, certainty was brought to the contract through the provision for the dimensions of the land to be determined by the Vendor’s surveyor, in combination with a dispute resolution clause. There is no equivalent dispute resolution clause in this case, however there remains some analogy. To the extent there remains any uncertainty or discretion inherent in the task of the surveyor, the parties have evinced an intention that the Vendor’s surveyor determine the final outcome. Particularly in circumstances where the extent of any uncertainty or discretion is likely to be very much less than that which existed in Taluja v Shree Shirdi Sai Sansthan Sydney Ltd, I do not consider the absence of an equivalent dispute resolution clause to be of any material significance.
While further survey work would have enabled identification of the defendants’ lots of land in Equuscorp Pty Ltd v Belperio, there was nothing in the contract to suggest that this work was contemplated or required, let alone that the parties intended that it be the mechanism for identifying the defendants’ lot. In the present case the further survey work was expressly contemplated and required by the Contract.
In reaching the conclusion that the Contract is not void for uncertainty, I have not been assisted by having regard to either the surrounding circumstances or the part performance of the Contract.
As to the surrounding circumstances, I have mentioned earlier the principles governing the permissible reliance upon evidence of such matters. In my view, the negotiations in this case, while providing some insight into the (inadmissible and irrelevant) subjective intentions of the respective parties, do not evidence any matters of common knowledge or understanding between the parties that inform the issues of construction with which I am concerned. While it is apparent from the negotiations that the parties had not agreed upon the precise boundaries and location of the Land throughout a significant period of the negotiations, I do not think this is ultimately of significance. The reason for this is that late in their negotiations there was express recognition of the need to reach an agreement that was sufficiently precise to ensure their agreement could have contractual effect, and it was subsequent to this that Annexure B was prepared and exchanged. The issue then becomes whether, despite the absence of agreement upon the precise boundaries and location of the Land, the rectangle in the Annexure B plan together with the provision for survey work by the Vendor’s survey are sufficient to avoid a conclusion of uncertainty. In my view, this falls to be determined according to the ordinary principles governing the construction of contracts, that is, by having regard to the terms of the Contract as a whole and having regard to the commercial purpose of the Contract.

As to the relevance of the parties’ part performance of the Contract, the defendants pointed to:
· the Purchaser’s conduct in completing the due diligence audit it was permitted to undertake pursuant to special condition 5; and
· the Vendor’s conduct (through Mr Oppedisano, and later PPR) in taking steps to obtain the necessary consents and approvals required by the special conditions, and hence in incurring the costs and expenses in doing so.
Relying upon the passage from the reasons of Latham CJ in York Air Conditioning and Refrigeration (A/sia) v The Commonwealth set out earlier in these reasons, the defendants contend that this part performance points against a conclusion that the Contract is uncertain.
While the principle identified by Latham CJ finds voice in a number of authorities,[38] I am not persuaded that it has application, other than perhaps in a very general way, in a case such as the present. The principle may carry significant weight in a case where the parties’ post contractual conduct, in particular in performing the contract, demonstrates that the parties have relevantly understood and applied the terms of the contract. This will be so in cases where the parties’ conduct relates to the area of asserted uncertainty, and hence not only demonstrates that the parties were able to understand the terms despite the asserted uncertainty but also goes some way to identifying the meaning to be given to the area of asserted uncertainty. In such cases, the parties’ post contractual conduct may evince an agreement between the parties as to what the terms mean. But the authorities appear to go further than this and acknowledge that a court might also be assisted in resolving uncertainty by insight provided by the parties’ conduct falling short of agreement as to how the contract should be construed.[39]
[38] Including, for example, Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235 at [107]-[110]; Taluja v Shree Shirdi Sai Sansthan Sydney Ltd [2016] NSWCA 158 at [52].
[39] While this use of post contractual conduct appears contrary to the usual prohibition against the use of such conduct in construing a contract (Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 83 ALJR 196), there is some authority to suggest that this prohibition does not apply with equal force in cases where the issue is one which arises from uncertainty about the subject matter of the contract or the failure to expressly address necessary terms (County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [23]).
In the present case, I do not consider the parties’ post contractual conduct provides any insight into the parties’ understanding, let alone agreement, as to how the area of asserted uncertainty should be resolved. While the conduct of both parties does evince an understanding on the part of both parties that they had a binding and enforceable agreement, I do not think it went as far as providing assistance in determining the precise boundaries, dimensions or area of the Land, or how those matters were to be determined. Certainly there is no evidence of any survey work that might have shed some light on these matters.
In these circumstances, I do not consider that the part performance of the parties has any greater significance than generally underscoring the courts’ desire and inclination to strive to give effect to the parties’ clear intention to be bound by their contentions.
The defendants’ alternative arguments: election and estoppel
Given my rejection of the plaintiff’s contention that the Contract is void for uncertainty, it is not necessary for me to consider the defendants’ alternative contentions of election and estoppel. However, having heard submissions on those issues, it is appropriate that I briefly state my conclusions for rejecting those contentions.
Plaintiff did not elect to affirm the Contract
The defendants contend that the plaintiff has waived any right to assert that the Contract is uncertain on the basis that it has elected to affirm the Contract.
In support of the alleged election, the defendants point to the plaintiff’s conduct in:
·    conducting the due diligence audit provided for in special condition 5;
·    participating (through Mr Moulds) in meetings with the defendants and various consultants, with a view to discussing plans for the overall development, including the plaintiff’s proposed retirement village;
·    entering into the Amending Agreement and the Supplemental Agreement; and
·    sending an email dated 27 November 2013 to a politician which made reference to its acquisition of a 4 hectare parcel of land.
In my view, none of this conduct establishes an election on the part of the plaintiff. The question of election only arises when a party to a contract must choose between two inconsistent rights or courses of action. A common example is when a party to a contract acquires a right to terminate (or a right to rescind) and must choose whether to exercise that right or to affirm the contract. Election also requires that the party with the relevant right not only know of the facts giving rise to that right, but also of the existence of the right to terminate. It also requires clear and unequivocal words or conduct evincing an intention to affirm the contract rather than exercise that right.[40]
[40] These principles emerge from a number of cases, including Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 642, 646; Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 at 30-32 and Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 at 633-634.
I do not consider that the plaintiff in this case was confronted with inconsistent rights or courses of action in the sense contemplated by the doctrine of election. A party to a contract that is void does not have a contractual ‘right’ to terminate or avoid the contract in the sense usually contemplated by the doctrine of election. The consequence of a contract being void for uncertainty is that it does not exist and thus does not give rise to any rights. Further, and in any event, a contract is either void for uncertainty or it is not. It is not clear to me how a court could give effect to a contract that is uncertain merely because a party to that contract has chosen to ‘affirm’ it.
Even if it is conceptually possible for a party to elect to affirm a contract that would otherwise be void for uncertainty, I do not consider that the plaintiff in this case has done so. While the plaintiff was aware of the terms of the Contract, there is no evidence to suggest that the plaintiff was aware that it had a right to treat the Contract as void for uncertainty prior to any of the steps relied upon by the defendants as evincing an election to affirm the Contract. Nor have the defendants pointed to any words or conduct which evince an intention to affirm the Contract despite the uncertainty now asserted. Merely pointing to conduct demonstrating an ongoing performance of, or commitment to, the Contract does not without more establish an election to affirm the Contract. The conduct and words relied upon establish at most an ongoing belief on the part of the plaintiff that the Contract was enforceable; not knowledge that it was void and yet a decision to proceed regardless.
Plaintiff not estopped from asserting uncertainty
In support of their contention that the plaintiff is estopped from asserting that the Contract is void for uncertainty, the defendants submit that:
·    by engaging in the conduct relied upon in support of the defendant’s contention of election, the plaintiff represented to the defendants that the Contract was binding and enforceable;
·    the defendants relied upon these representations in expending significant sums of money in connection with the re-zoning and development of the Development Land, including through the payment of various consultants engaged to assist in that process; and
·    in the circumstances it would be unconscionable for the plaintiff to resile from these representations and to assert that the Contract is void for uncertainty.
In Equuscorp Pty Ltd v Belperio, the plaintiffs contended that the defendants were estopped from denying that the leases were sufficiently certain. The estoppel was said to have arisen by reason of a mutual assumption between the parties that the leases would be valid or enforceable. In support of the existence of this assumption, and the plaintiffs’ reliance upon it, the plaintiffs pointed to the parties’ conduct in permitting the investment scheme and pooling arrangements to operate for a period of time without being concerned to identify the precise location of the leased land. The plaintiffs contended that it would be unconscientious for the defendants to resile from the common assumption.
Hargrave J rejected the existence of the estoppel, holding that the conduct relied upon did not establish a relevant common assumption. The conduct did not establish a common assumption to the effect that the leases would be enforceable even if the land was not identified in the leases with sufficient certainty to enable it to be located.[41]
[41] Equuscorp Pty Ltd v Belperio [2006] VSC 14 at [232].
In upholding this conclusion on appeal, Buchanan JA held that the plaintiffs had not established a “comprehensive” assumption that operated even in circumstances where the investment scheme and pooling arrangements had collapsed.[42] His Honour added:[43]
In my opinion it could not be said that it was unjust for the respondent to rely upon the fact that Equus could not identify the land the subject matter of the lease.
It appears that the common assumption advanced by Equus was no more than a recognition by the parties to the leases that while the overall scheme operated in the manner contemplated at the outset, there was no need to identify the land leased to each investor. In my view that assumption was too slight a basis for constructing a position from which the respondent could not in conscience resile when the entire scheme collapsed.
[42] Equuscorp Pty Ltd v Antonopoulos [2008] VSCA 179 at [40].
[43] Equuscorp Pty Ltd v Antonopoulos [2008] VSCA 179 at [41]-[42].
While there are other authorities which also suggest the conceptual possibility of an estoppel operating to prevent reliance upon an assertion that a contract is void for uncertainty,[44] it seems to me that there will often be a conceptual difficulty associated with such a contention. The difficulty was explained in the following terms by Byrne J in Agius v Sage:[45]
The plaintiff sought to raise an estoppel to defeat the Developer’s uncertainty arguments if it should appear they were successful. … It is based on the principles expounded in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. It assumes as a matter of analysis that the consensus reached on 5 February was not sufficient for the court to conclude that sufficient terms had been agreed with sufficient particularity to constitute an enforceable contract, that is, it was uncertain. In order to satisfy the first requirement for such an estoppel, the plaintiffs must show that they … assumed contrary to this fact that the contract of 5 February was sufficiently certain to be enforceable. Assuming the remaining requirements to have been made out, the estoppel will then prevent the Developer from denying this certainty. Let us assume that this has been achieved. What is left is an inadequate agreement which the plaintiffs wish to enforce or for breach which they seek damages. The fundamental difficulty that I have with such an argument is that equity cannot in this way render certain that which is uncertain. If the parties have failed to agree a material term equity cannot legislate it for them. I shall return to this plea of estoppel in the context of its role as an answer to the Statute of Frauds defence. For present purposes, it cannot avail the plaintiffs.
[44] See, for example, Supalux Paint Co Pty Ltd v Vyse [1999] WASC 78 at [145]-[151].
[45] Agius v Sage [1999] VSC 100 at [66].
In my view, the estoppel relied upon by the defendants in the present case is factually and conceptually flawed. It is factually flawed because I do not consider that the conduct relied upon established a relevant representation or common assumption. I do not consider that a general (implied) representation or assumption that a contract is binding is a sufficient basis for the estoppel contended for. It is to be expected that in almost every case the parties will, at least for a period of time, operate on the basis of a common assumption that the contract that they have entered into is binding. Adopting the language of the Court of Appeal in Equuscorp Pty Ltd v Antonopoulos, such conduct is too slight a basis for the estoppel contended for. There would need to have been a more comprehensive representation or assumption, that is, a representation or assumption to the effect that the contract was valid and enforceable despite the inability to determine the precise location and boundaries of the Land.
Even if this factual hurdle had been cleared in this case, which it was not, the conceptual difficulty identified by Byrne J in Agius v Sage would remain. It is not clear to me how equity could uphold and give effect to a contract which is uncertain in the relevant sense. As Byrne J pointed out, equity cannot render certain that which is uncertain.
It may be that an estoppel will be available to prevent or answer an assertion of uncertainty in some cases, for example, where the representation or common assumption relates to the matter which is uncertain and hence operates to reduce or cure the uncertainty in some way. However, for the reasons I have explained, I consider the estoppel contended for by the defendants in this case to be factually and conceptually flawed.
For these reasons, if the Contract had been void for uncertainty, I do not consider that the defendants could have avoided a declaration to this effect on the basis of their contentions that the plaintiff elected to affirm the contract or that the plaintiff is estopped from asserting that the Contract is void for uncertainty.
Conclusion
Having concluded that the Contract is not void for uncertainty, it is appropriate that I dismiss the plaintiff’s claim for a declaration to the effect that the contract is void.
The plaintiff seeks, in the alternative, a declaration as to the area and dimensions of the Land to be sold and purchased in accordance with the Contract. In my view it is not appropriate that I make an order to this effect. It will be apparent from my reasons the meaning that I consider the Contract relevantly bears, and hence the process by which the area and dimensions of the Land are to be determined. It is neither possible on the information available to me, nor desirable, that I go further than this. The appropriate course is for the Contract to run its course in accordance with the construction articulated in my reasons. If and when any dispute arises as to the area and dimensions of the Land thus arrived at, it may be appropriate for the parties to return to the Court for further orders.
For the reasons set out, I dismiss the plaintiff’s claim.