Masonic Homes Ltd v Oppedisano & Platinum Property Retirement Pty Ltd (No 2) - [2017] SASC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MASONIC HOMES LTD v OPPEDISANO & PLATINUM PROPERTY RETIREMENT PTY LTD (NO 2)
[2017] SASC 50
Judgment of The Honourable Justice Doyle
7 April 2017
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - ILLEGAL AND VOID CONTRACTS
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS
The plaintiff 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 plaintiff contended that the Contract was uncertain as to subject matter and price. On 16 December 2016 the Court dismissed the plaintiff's claim for a declaration that the Contract was void for uncertainty.
On 20 December 2016, the defendants gave the plaintiff notice that the conditions in special condition 6.1 had been met following deposit by the Registrar-General of the Deposited Plan, such that the Contract was unconditional. However, unlike the depiction of the land in the Contract, the land in the Deposited Plan does not share an eastern boundary with Main North Road. Rather, it is set back 10 metres from that road.
The plaintiff was given permission to file a second statement of claim in which it sought declarations that the land in the Deposited Plan does not conform to the Contract by reason that the land sits 10 metres west of the eastern boundary of the title, and that the conditions in special condition 6.1 have not been met.
Held per Doyle J, dismissing the plaintiff’s amended claim:
1. The plaintiff has not established that the Deposited Plan does not conform to the Contract, or that the conditions in special condition 6.1 have not been met.
Taluja v Shree Shirdi Sai Sansthan Sydney Ltd [2016] NSWCA 158; Highmist Pty Ltd v Tricare Ltd [2005] QCA 357, considered.

MASONIC HOMES LTD v OPPEDISANO & PLATINUM PROPERTY RETIREMENT PTY LTD (NO 2)
[2017] SASC 50
Civil.
DOYLE J:

By statement of claim dated 1 April 2016, the plaintiff (Masonic Homes) sought declaratory relief to the effect that a contract (the Contract) entered into between it and the first defendant (Mr Oppedisano) on 26 June 2009 for the sale and purchase of a portion of land south of the town of Roseworthy (the Land) was void for uncertainty.
The Land was part of a larger parcel of land (the Development Land) that had earlier been acquired by Mr Oppedisano, and was then sold by him to the second defendant (Platinum Property Retirement Pty Ltd (PPR)), with PPR substituted for Mr Oppedisano as the Vendor in the Contract. The Land was depicted in the plan contained in Annexures B and C to the Contract (the Plan) by a hand drawn rectangle in the south eastern corner of the Development Land, containing the words “4 ha Indicative Only”. It was depicted as sharing its eastern boundary with Main North Road and its southern boundary with an adjacent allotment.
Masonic Homes claimed that the Land in the Contract was not sufficiently certain as to subject matter and price in that the area and dimensions of the Land were unclear and not capable of being ascertained from the terms of the Contract, and the purchase price was to be derived by a formula that required the area of the Land to be established.
On 16 December 2016, I published my reasons for dismissing Masonic Homes’ claim on the basis that the Contract was not uncertain.[1] These reasons should be read in conjunction with those earlier reasons, which set out not only the relevant contractual provisions but also my construction of those provisions insofar as that was relevant to my conclusion that the Contract was not void for uncertainty.
[1] Masonic Homes Ltd v Oppedisano [2016] SASC 196.
On 20 December 2016, the defendants gave Masonic Homes notice that the conditions in special condition 6.1 of the Contract had been met following deposit by the Registrar-General of Deposited Plan 114625 (the Deposited Plan), such that the Contract was unconditional. The Deposited Plan showed the Land to be purchased by Masonic Homes as allotment 61. However, unlike the depiction of the Land in the Plan, the Land in the Deposited Plan does not share an eastern boundary with Main North Road. Rather, it is set back 10 metres from that road.
On 23 December 2016, I gave Masonic Homes permission to file a second statement of claim in which it seeks declarations that:
1.   allotment 61 in the Deposited Plan does not conform with the Plan by reason that allotment 61 sits 10 metres west of the eastern boundary of the title (being the present boundary with Main North Road[2]); and
2.   the conditions in clause 6.1 of the special conditions to the Contract have not been met.
[2]    Referred to interchangeably in the evidence as Horrocks Highway.
I also gave Masonic Homes permission to reopen its case for the limited purpose of seeking the above declaratory relief. Masonic Homes did not seek to, and has not been given permission to, go behind the dismissal of its earlier claim for declaratory relief. To the contrary, it was agreed that the order dismissing that claim remained in force and that the parties remained bound by it.
By their fourth defence filed 2 February 2017, the defendants deny that allotment 61 in the Deposited Plan does not conform with the Plan, and deny that special condition 6.1 of the Contract has not been met. The defendants’ case is that the Deposited Plan complies with the requirement of the Contract such that the special conditions to the Contract have been met and the Contract is now unconditional.
The defendants plead that, on its proper construction, the Contract did not require that the Land be located precisely as depicted in the south eastern corner of the Development Land. Rather, its precise boundaries and therefore location were subject to, or to be determined by (i) the Vendor’s surveyor, and/or (ii) any requirements of, or conditions imposed by, the relevant planning authorities.
On the defendants’ case, the reason for the 10 metre set back was an anticipated road widening along the relevant section of Main North Road to accommodate a planned “seagull intersection” that would permit access to the Development Land from Main North Road at a point to the north of the Land. The defendants contend that the Deposited Plan conforms with the Contract despite the 10 metre set back because the adjustment to the Land as depicted in the Plan was made by the Vendor’s surveyor and reflected a planning requirement or condition of development approval.
In its third reply, Masonic Homes pleads that any discretion on the part of the Vendor’s surveyor to make adjustments to the Land was confined to surveying adjustments required to interpret and translate the depiction of the Land in the Plan, and did not extend to adjustments required to address planning requirements. Masonic Homes further pleads that even if the surveyor’s discretion did extend to such adjustments, this did not avail the defendants because neither the seagull intersection nor the 10 metre set back were imposed as a condition of the approvals necessary to obtain deposit of the Plan of Division by the Registrar-General. Rather, they were the result of a design process in which the defendants were involved. Finally, Masonic Homes also pleads that the defendants failed to do all things necessary to obtain the approvals and consents necessary to achieve the deposit of the plan of division by the Registrar-General for the purposes of special condition 6.2(b). In particular, they failed to lodge, or negotiate with a view to lodging, a Plan of Division that had the Land in the location depicted in the Plan.
It is apparent from the above that the parties are in dispute both as to the construction of the Contract (and in particular the extent of permissible adjustments to the Land as depicted in the Plan), and the application of that construction to the facts (and in particular the extent to which the seagull intersection and 10 metre set back were necessary in order to obtain deposit of the Plan of Division by the Registrar-General).
I propose to commence by addressing the construction of the Contract before considering the application of that construction in light of the evidence adduced on the resumption of the trial which was necessary to address Masonic Homes’ amended claim.
Construction of the Contract
I have set out the relevant terms of the Contract, and in particular special conditions 6.1 and 6.2, and the definition of Plan of Division, in my earlier reasons.[3]
[3] At [35]-[38].
In those reasons, I upheld the defendants’ primary construction, namely that the parties agreed that the Land is a 4 hectare parcel of land, with its location as depicted by the hand drawn rectangle in the Plan, albeit that the precise dimensions and boundaries, and therefore precise location, would be determined by the survey provided for in special condition 3(a) (and be able to be moved by agreement pursuant to special condition 6.4).[4]
[4] At [98].
Further, in several places I elaborated upon the process by which the precise dimensions, boundaries and location might be determined, and the circumstances in which they might depart from the depiction of the Land in the Plan.
In this context, I mentioned that while the words of special condition 3(a) appear to contemplate a survey by the Vendor’s surveyor after the land division required by special condition 6.1, the reality was that the survey would need to be undertaken prior to the land division; that is, prior to the preparation of the Plan of Division and its deposit by the Registrar-General.[5] While not necessarily excluding the possibility that there be a second survey after the land division, this would be at most a formality because it would need to reflect the Land as depicted in the Plan of Division.
[5] At [106].
I construed the agreement between the parties as meaning that they had agreed that the precise dimension and boundaries, and hence price, were to be ascertained by the survey to be carried out by the Vendor’s surveyor.[6]
[6] At [107].
As I also explained, this did not mean that the Vendor’s surveyor had a free reign in determining the boundaries of the Land. To the contrary, the task of the Vendor’s surveyor would be substantially, if not entirely, controlled by the parties’ agreement that the Land be in accordance with its depiction through the hand drawn rectangle in the Plan.[7] I indicated my expectation that there would be little room, if any, for discretion by the Vendor’s surveyor. I added that to the extent the Vendor had any discretion in determining the adjustments to be made, and in working through any exigencies that may arise, the Vendor’s surveyor would no doubt be subject to an implied obligation to act reasonably in giving effect to the Plan. I did not regard the extent of input from the surveyor to be productive of unintended, let alone unworkable, uncertainty.[8]
[7] At [108].
[8] At [109].
In terms of the exigencies that might arise in the survey process, and hence adjustments that might be made by the surveyor, I mentioned the possibility that the reality on site, or the exigencies of the site, might require some minor adjustments to the boundaries of the Land.[9] I also mentioned “surveying exigencies” more generally.[10]
[9] At [108].
[10] At [113].
Counsel for Masonic Homes contends that, even accepting the correctness of my earlier reasons, the extent of the discretion vested in the Vendor’s surveyor was confined to the surveying function, as opposed to a planning or other function. It was confined to the mechanical task of interpreting and translating the depiction of the Land in the Plan so as to produce a plan in a form suitable for a plan of division. Accordingly, the discretion vested in the Vendor’s surveyor did not permit alterations or amendments to the Land that went beyond an interpretation or translation of the depiction of the Land in the Plan, and hence which involved a departure from that depiction. The only qualification to this was in the case of adjustments necessary to address any exigencies encountered on site when undertaking the survey, such as a variation between the location of boundaries and survey markers.
In my view, this is to place too great an emphasis upon the depiction of the Land in the Plan, and to take too narrow a view of the surveyor’s task.
As explained in my earlier reasons, the Contract contemplated adjustments to the depicted boundaries and hence the location of the Land. I emphasised that the depiction of the Land was intended to be “Indicative Only”.[11] I contrasted the defendants’ primary construction, which I accepted, with the defendants’ third construction, noting that the latter differed in affording primacy to the depiction of the Land in the Plan.[12] By implication, I accepted that the depiction of the Land carried a lesser significance under the defendants’ primary construction. It is also significant in this respect that while the contemplated Plan of Division was defined by reference to the Plan (that is, the depiction of the Land in Annexure C), the definition provided for a division of the Land “in the same manner” as the Plan. It recognised, as the parties must have understood, that the Plan was not in a form appropriate for deposit by the Registrar-General.
[11] At [113].
[12] At [97], [121].
Turning to the surveyor’s task, it is my view that Masonic Homes’ contentions take too narrow a view of this task, at least in the context of the present Contract. I consider that the parties contemplated that the surveyor’s task would extend beyond a mere mechanical interpretation and translation of the depiction of the Land in the Plan. Considered in light of special conditions 6.1(b), 6.1(c) and 6.2(b), that task extended to the preparation of plans suitable for a plan of division that was capable of deposit by the Registrar-General, and hence plans that reflected the exigencies of the process of obtaining the approvals and consents necessary for that to occur.
Once the breadth of the surveyor’s task is understood in this way, I see no reason to confine the ability of the surveyor to make adjustments necessary to address exigencies to those arising in the mechanical task of interpreting and translating the Plan, as opposed to those arising in the broader task of preparing plans suitable for a plan of division capable of deposit by the Registrar-General. To the contrary, I consider it likely that the parties intended that the surveyor, acting reasonably, be entitled to make the latter kind of adjustments; that is, adjustments reflecting the exigencies of the approvals and consents necessary to achieve deposit of the Plan of Division by the Registrar-General.
In support of this approach, it is relevant in my view that at the time of entry into the Contract, the parties were not in a position to be precise. They understood that there would be a process of approvals and consents, reflected in a plan of division, that needed to be undertaken before the precise boundaries and location of the Land could be determined. They were prepared to contract before knowing the precise outcome of this process, and hence despite a degree of uncertainty as to what that outcome might be. They thus intended a degree of flexibility as to the outcome. They intended to be bound by adjustments to the Land that might be required by the surveyor to give effect to the process contemplated by the parties.
In summary, I consider that the parties agreed that the precise boundaries, dimensions and location of the Land, and hence price, would be ascertained by the survey to be carried out by the Vendor’s surveyor, and hence be subject to adjustments arising from the exigencies of that survey work, including those necessary to reflect the process of obtaining the approvals and consents required to achieve the deposit of the Plan of Division by the Registrar-General.
Through my use of the word “exigencies”, and my reference to “minor adjustments”,[13] I intended to recognise that there will be limits to the type of adjustments that are contractually permissible. They must be adjustments made necessary by the surveyor’s task, or the process of obtaining deposit of the Plan of Division by the Registrar-General. I contrast, for example, adjustments made simply to suit the convenience or preference of the Vendor. Adjustments of this nature would need to be by agreement (with the parties acting reasonably), in accordance with special condition 6.4.
[13] At [108], [109].
It is also my view that even within the category of adjustments made necessary by the surveyor’s task, or the process of obtaining deposit of the Plan of Division, there may be some adjustments that are simply too significant to treat them as being within the contemplation of the parties and permitted by the Contract. Essentially, if an adjustment would be such as to alter the substance of what the parties agreed, or would result in the Land not being substantially as depicted in the Plan, then I do not consider that it would be contractually permissible.
In opposing the construction that I have articulated above, and in contending for a construction that would confine permissible adjustments to those involved in the mechanical surveying task of interpreting and translating the depiction of the Land in the Plan, counsel for Masonic Homes relies on a number of matters.
First, he points to the references in my earlier reasons to the boundaries with Main North Road (to the east) and section 80 (to the south) acting as reference points that were critical to my conclusion that the Contract was not uncertain,[14] and as the starting point for the surveying task.[15] He contends that it would be contrary to my earlier reasons to permit adjustments to these boundaries.
[14] At [101].
[15] At [108].
I do not agree. The depicted eastern and southern boundaries can operate as reference points and starting points even if they are ultimately subject to adjustment in the limited circumstances I have described. They still provide significant guidance to the surveying task, and hence enable significantly greater certainty as to what the parties intended to agree than, for example, the hand drawn rectangle placed on the plan annexed to the contract in Taluja v Shree Shirdi Sai Sansthan Sydney Ltd.[16]In my view, once it is accepted, as I have accepted, that the Land as depicted in the Plan is subject to adjustments arising from exigencies encountered in the surveying task, there is no reason to confine those adjustments to ones that do not affect the eastern or southern boundaries.
[16] Taluja v Shree Shirdi Sai Sansthan Sydney Ltd [2016] NSWCA 158.
Next, counsel for Masonic Homes contends that special conditions 6.3 and 6.4 indicate that the parties had turned their mind to, and addressed, the possibility of adjustments to the Land as depicted in the Plan in particular circumstances, making it unlikely that the parties intended to otherwise allow for adjustments (beyond those that might be required by the mechanical surveying task). While accepting that special conditions 6.3 and 6.4 are relevant in construing the Contract as a whole, I do not accept that they are as significant as Masonic Homes contends.
In the case of special condition 6.4 (which contemplates the parties agreeing to amend the Plan of Division, or vary the location of the Land, prior to the deposit of the Plan of Division), it is my view that this special condition performs a quite different function from the surveying adjustments that I have held may be made without Masonic Homes’ agreement. It also permits adjustments to the Land in more wide ranging circumstances and of potentially greater significance. Special condition 6.4 contemplates the possibility, for example, that one or other of the parties might decide that it is preferable or convenient to change the size or location of the Land in some more significant manner than the adjustments I have contemplated would permit. Such a proposal might arise, for example, through the process of preparing the Structure Plan. It might be prompted by a change to the location of the planned activity centre on the Development Land. In my view, it is readily understandable that the parties might have intended to cater for such changes, and to have intended to bind each other to “acting reasonably” in attempting to agree such changes, and yet at the same time have intended to allow for surveying adjustments to be made unilaterally in the circumstances I have described.

Turning to special condition 6.3, it provides:
6.3 Easements
The Purchaser purchases the Property on the understanding that a Relevant Authority may require an easement, exception or reservation to be registered on the certificate of title for the Property before Settlement provided that no such easement, exception or reservation will be registered on the Title for the property without the Purchaser’s prior written consent.
Masonic Homes emphasises that this special condition specifically contemplates the potential intervention by, and the imposition of requirements by, a “Relevant Authority” (which is defined broadly and includes the public authorities involved in the planning and approval process). It contends that the parties are unlikely to have intended to cater expressly for such intervention and requirements in this way (and in particular, by requiring Masonic Homes’ written consent), and yet at the same time have intended that surveying adjustments which are the product of planning requirements be made unilaterally.
Again, there is some force in this contention. However, it seems to me that special condition 6.3 is intended to address the specific circumstances in which a relevant authority has required something (an easement, exception or reservation) that is to be registered on Masonic Homes’ certificate of title. While the significance of such a requirement will depend upon the nature of the easement, exception or reservation that the authority has required, there will be at least some impairment of, or encumbrance upon, the title of the Land acquired by Masonic Homes. Masonic Homes will receive its 4 hectare parcel, but impaired or encumbered at least to some extent. On the other hand, the surveying adjustments that I have contemplated will not necessarily result in Masonic Homes receiving anything less than what it contracted for. While such surveying adjustments may result in Masonic Homes receiving something slightly different from the depicted Land, it will still receive an unencumbered parcel of 4 hectares of land, and still receive land substantially the same as what it contracted for.
Given the potential significance of a requirement that entails registration on Masonic Homes’ certificate of title, I see no tension, let alone inconsistency, in the parties having intended that this require Masonic Homes’ written consent and at the same time having intended that surveying adjustments that do not require registration in this way may be made unilaterally by the Vendor’s surveyor.
Next, counsel for Masonic Homes contends that by allowing for surveying adjustments occasioned by planning requirements, my construction of the Contract would tend to undermine the intended operation of special conditions 6.1 and 6.2, and introduce an inappropriate or impermissible level of uncertainty.
As to the first of these contentions, Masonic Homes points to special conditions 6.8 and 6.9(a). Special condition 6.8 provides that the conditions are for the benefit of the Purchaser and may only be waived by the Purchaser. Special condition 6.9(a) provides that if the conditions in special condition 6.1 are not fulfilled by the Approval Date, then the Purchaser may terminate the Contract by giving notice to the Vendor. Masonic Homes contends that the plain intention of these provisions is to ensure that Masonic Homes receives the Land and Plan of Division that it bargained for, and that to allow for any impediment to the approvals and consent, or the deposit of the Plan of Division, to be addressed through a surveyor’s adjustment, would be to undermine this contractual intention.
The difficulty with this contention is that it tends to assume the correctness of Masonic Homes’ construction. It assumes that Masonic Homes did not agree to surveying adjustments necessitated by planning requirements. If one were to assume (consistently with my construction) that Masonic Homes agreed to purchase the Land as depicted, but subject to surveying adjustments (including those necessitated by planning requirements), then I do not consider that the operation of special conditions 6.1 or 6.2 would be undermined.
Further, and in any event, I do not accept that my construction of the Contract deprives special conditions 6.1 and 6.2 of any content, and hence deprives Masonic Homes of the intended benefit of those special conditions. To the contrary, on my construction of the Contract, there remains significant work to be done by special conditions 6.1 and 6.2. While some planning impediments may be addressed through adjustments to the Land by the Vendor’s surveyor, this does not mean that the Vendor has no obligation under special condition 6.2. The Vendor must still actively pursue the relevant approvals and consents, and hence deposit of the Plan of Division by the Registrar-General. It cannot sit on its hands. And it cannot, through its surveyor, make any adjustments arising from planning considerations simply on the basis that they are convenient or desirable. The adjustments must be ones occasioned by planning “exigencies”; that is, they must be adjustments made necessary by the surveying task or planning process. The adjustments must also be ones that do not alter the substance of the benefit of the Contract.
In other words, the Vendor cannot simply pursue any plan of division that suits its own planning or development objectives or desires, and make adjustments accordingly. To the contrary, special condition 6.2 requires that the Vendor do all things necessary to obtain approvals and consents, and deposit of the Plan of Division (that is, a plan of division for the Land as depicted in the Plan). The Vendor is not entitled to ignore the depiction of the Land in the Plan and pursue any plan of division that it considers convenient or desirable. While adjustments to the Land may be made, I have mentioned the limits to these adjustments and the circumstances in which they may be made. If, despite the Vendor’s efforts, the relevant approvals and consents, and deposit of the Plan of Division, cannot be achieved, then Masonic Homes remains entitled to terminate.
In my view, the matters just explained also go some way to address Masonic Homes’ contention that my construction would introduce an impermissible level of uncertainty into the Contract.
I acknowledge that allowing for surveying adjustments which are not only the product of exigencies arising in the mechanical process of interpreting and translating the depiction of the Land in the Plan, but also the product of exigencies arising in the planning process, introduces a degree of uncertainty. However, I do not consider it involves an unintended or uncommercial, let alone unworkable, degree of uncertainty. To the contrary, I consider that the degree of uncertainty merely reflects what the parties expected and intended, given their decision to contract ahead of the process of preparing the Plan of Division.
In so concluding, I emphasise the two qualifications upon the contemplated surveying adjustments that I have mentioned several times, namely that they must be adjustments that address a relevant exigency, and they must be not such as to alter the substance of what the parties agreed.
Neither of these limitations appears in terms in the Contract. But that does not prevent them arising on the proper construction of the Contract. Indeed, in circumstances where the need for adjustments has not been addressed in terms, but rather has arisen from a proper construction of the Contract as a whole, it is not surprising that the limitations upon those adjustments have not been addressed in terms. In my view, both limitations are the legitimate product of the construction exercise.
I shall return to the concept of “exigency” later in these reasons by reference to the facts that have arisen, and in particular Masonic Homes’ contention that the 10 metre set back included by Mr Curnow was not the result of a relevant exigency. I do not consider that it requires additional explanation at this stage of my reasons.
However, in relation to a limitation to address circumstances relating to the significance of the adjustments, I accept that there must be some limitation of this nature. Allowing for all adjustments occasioned by surveying or planning exigencies regardless of their significance would not be appropriate. Even if this did not render the Contract uncertain, it would transform the bargain into something the parties did not intend to agree. For example, if the deposit of the Plan of Division could only be achieved by moving the Land to another corner of the Development Land, or by reducing its size by half, or by making it straddle the proposed access road to the Development Land from Main North Road, I do not consider that adjustments to cater for requirements of this nature would reflect the bargain struck by the parties. The departure from the Land as depicted in the Plan would be too significant or fundamental.
As the need for some limitation is driven by the need to ensure that the parties (and in particular Masonic Homes) are not deprived of the benefit of the bargain they struck, I consider it appropriate that this inform the content of the limitation. I have thus suggested that the limitation might be to preclude adjustments that substantially alter the substance of what the parties agreed.
In this context, counsel for Masonic Homes drew my attention to the decision of the Queensland Court of Appeal in Highmist Pty Ltd v Tricare Ltd.[17] In that case, the appellant had contracted to subdivide land and sell part of the subdivision to the respondent. The contract of sale was subject to, amongst other things, a condition that the approved plan of subdivision obtained by the appellant not differ in certain respects from the plan attached to the contract. In particular, special condition 47.1 provided that the contract was subject to approval by the local authority and registration of a plan of subdivision “substantially in the form attached”. Special condition 47.2 entitled the purchaser to terminate if the condition in special condition 47.1 was not satisfied by a given date, and special condition 47.3 required the Vendor to “diligently pursue” the relevant plans and applications. Importantly, special condition 47.4 provided that the plan of subdivision shall be taken to be substantially in the form attached notwithstanding that the boundaries differ, provided that the boundaries do not vary from those on the plan by a distance of more than 20 metres at any point, and the area of the land is not reduced by more than 3 per cent.
[17] Highmist Pty Ltd v Tricare Ltd [2005] QCA 357.
Having registered a plan of subdivision, the appellant called on the respondent to complete the contract. The respondent did not do so. The plan of subdivision did not conform to the attached plan in that the land in the former was not contiguous with a private road, was smaller by 3.015 per cent, and had boundaries that varied by 26 metres in one place and 38 metres in another place. The appellant contended that the failure to observe the requirements of special condition 47.4 was contractually inconsequential because the respondent had nevertheless received substantially what it had contracted to purchase.
Keane JA (with whom Jerrard JA and Cullinane J agreed) rejected this contention. His Honour reasoned that by necessary implication from the terms of special condition 47.4, if the tolerance provided for in that special condition were exceeded, then the plan was not a “plan of subdivision substantially in the form attached” for the purposes of special condition 47.1[18]
[18] Highmist Pty Ltd v Tricare Ltd [2005] QCA 357 at [36].
His Honour went on to observe:[19]
The appellant's submission in relation to this point amounts to an argument that, because the degree of deviation from the terms of special condition 47.4 was relatively minor, this deviation should effectively be overlooked for the purposes of special condition 47.1. Such an approach does not accord with the accepted canons of contractual interpretation. There is no warrant, either in authority or in principle, for reading into a contract between two apparently well-advised commercial entities a proviso of the type argued for by the appellant. …
It is, therefore, not to the point to consider whether or not the respondent would have received “substantially what it had contracted to purchase”. The clear terms of the contract required the appellant to register a plan of subdivision in conformity with the explicit requirements of special condition 47.4. This was not done. To excuse this failure because the amount by which the specifications of the registered plan deviated from those stipulated in the contract was “small” would be to deprive the terms agreed upon by the parties and contained in that special condition of any real meaning. The common law does not operate in this way. On the contrary, as Kirby J said in Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd:
“The law facilitates and upholds commercial contractual obligations and the expectations that derive from them … Business is entitled to look to the law to keep people to their commercial promises.”
A contracting party such as the appellant must abide by, and expect to be held to, the parameters of an agreement freely entered into by it.
[19] Highmist Pty Ltd v Tricare Ltd [2005] QCA 357 at [40]-[41] (omitting citations).
I do not consider that this case assists in the construction of the present contract. Nor do I consider that it suggests an approach that is contrary to the one I have adopted, or that would deny the existence of a limitation upon the permissible adjustments of the nature I have suggested.
In Highmist Pty Ltd v Tricare Ltd the parties expressly articulated the outer limit of adjustments or deviations from the plan that were to be permitted. In that circumstance, it is readily understandable that additional or greater adjustments, even if not substantially altering what the respondent had contracted to purchase, would not be contractually permissible.
In the present case, however, there is no equivalent of special condition 47.4 marking out the precise limits or tolerance of any deviation. To the contrary, the parties evinced an intention that there be some permissible adjustments to the depiction of the Land in the Plan (as is evident by the use of the words “Indicative Only”), but left the precise limits of those adjustments to be determined as a matter of construction. In that context, I see no barrier to the conclusion I have expressed. My reference to a limitation upon the permissible adjustments to exclude those that substantially alter what Masonic Homes contracted to purchase is in the context of an ability to make adjustments to the Land not expressly articulated by the parties. It is not in conflict with any express limitation upon such adjustments. Nor is it, reliant upon some (non-existing) general proposition of law that insubstantial variations from contractual performance are of no contractual significance.
That said, the critical point for present purposes is not so much the precise terms in which the outer limit of permissible adjustments might be articulated. Rather, it is more that there is, in my view, some limit based on the significance of the adjustment and the extent of the departure from the depiction of the Land in the Plan.
While the above analysis of the construction of the Contract involves some elaboration upon, and extension of, the construction articulated in my earlier reasons, I see no difficulty in that. I do not consider there to be any inconsistency between my elaboration in these reasons and my earlier reasons. The elaboration has been required by the particular factual situation that has arisen since publication of my earlier reasons, and has required me to address in more detail an aspect of the construction that it had previously been sufficient to address in general terms.
Application to the facts
I turn now to address the circumstances in which the Land (allotment 61) in the Plan of Division deposited by the Registrar-General came to be set back 10 metres from the eastern boundary that the Development Land shares with Main North Road.
Upon the resumption of the trial necessary to address Masonic Homes’ amended claim, the defendants relied upon an affidavit from Mr Curnow, the surveyor retained by PPR to assist it in obtaining the approvals and consents required for the deposit by the Registrar-General of the Plan of Division. He was cross-examined by counsel for Masonic Homes. Both parties also relied upon a number of documents tendered by consent at the resumption of the trial. The matter proceeded on the basis that the evidence from the earlier trial was also before me.
Before addressing the issues in dispute, it is convenient to commence with summaries of the relevant regulatory framework and the evidence of Mr Curnow because they provide an understanding of the process involved in obtaining the necessary approvals and consents, and, in the case of the evidence of Mr Curnow, the considerations that led to the 10 metre set back.
The regulatory framework
The division of the Development Land to create the Land (allotment 61) required development approval as it involved a development under the Development Act 1993 (SA). Under s 34 of that Act, the Light Regional Council (the Council) was the relevant authority. In considering whether to grant consent to division of the Development Land, the Council was obliged, pursuant to s 33 of the Act, to assess it against the provisions of the appropriate Development Plan, which in this case was the Light Regional Council Development Plan.
On 10 November 2016, the Minister for Planning, by notice in the Government Gazette, approved the Roseworthy Township Expansion Development Plan Amendment (the DPA). The division of the Development Land was therefore required to comply with the DPA. The Development Land fell within the Suburban Neighbourhood Zone identified in the DPA. The principles of development control in the DPA relating to this zone included establishing a hierarchy of roads and intersections generally in accordance with Concept Plan Map Lig/13 Roseworthy Township Expansion (the Concept Plan).
Mr Curnow’s evidence
Mr Curnow is a surveyor from Alexander & Symonds Pty Ltd, with over 30 years’ experience in land divisions and developments. In around March or April 2016, he was retained by PPR to assist it to obtain the necessary approvals and consents, and deposit of the Plan of Division by the Registrar-General. The defendants, Mr Oppedisano and PPR, were also assisted by various other consultants, including Mr Verco (a traffic engineer from Mott MacDonald), Mr Holmes (a planning consultant from Holmes Dyer Pty Ltd) and solicitors from Cowell Clarke.
Mr Curnow explained that a land division application such as the present required the preparation and submission of an application to the Development Assessment Commission (DAC). When an application is lodged, it is considered by the DAC and also passed on to the relevant decision making authority, which in this case was the Council. Further, in a situation such as the present, where the relevant land abuts a main road, the application is also referred to the Department of Planning, Transport and Infrastructure (DPTI) for its assessment of the current and future access arrangements. This role of DPTI included it making recommendations, in appropriate cases, to ensure there would be sufficient land available for road widening purposes.
For the purposes of undertaking his task, Mr Curnow was provided with a copy of the Plan from the Contract. Further, in September 2016, he was provided with a copy of the Concept Plan. Upon reading the Concept Plan, Mr Curnow noted that an intersection was proposed on Main North Road. It was located adjacent to the Development Land, slightly to the north of the Land, and was described as “Channelised junction – seagull (100 km/hr) to Residential plus left turn into Employment Zone” (the seagull intersection).

Mr Curnow understood that the seagull intersection would allow motorists to enter the Development Land from Main North Road in order to obtain access to the residential and other developments that might occur on the Development Land upon finalisation of the DPA. Mr Curnow further understood that the seagull intersection would provide for entry onto the Development Land approximately 900 metres north of the intersection between Main North Road and Kangaroo Flat Road. Allowing for an access road width of 35 metres, this was about 60 metres north of the northern boundary of the Land.
Based on the indication through the Concept Plan that there was to be a seagull intersection on Main North Road, Mr Curnow knew that DPTI would look to ensure that the land division was such as to permit a future road widening to accommodate that intersection. Mr Curnow’s view was that this would inevitably require the acquisition by DPTI, or vesting as road reserve in the Council, of at least some portion of the Land because slip lanes would be needed on either side of the seagull intersection. The slip lanes would be necessary to permit vehicles using the intersection to accelerate or decelerate, given that the speed limit on Main North Road was 100 kph.
In light of this, Mr Curnow considered that before submitting the land division application on behalf of PPR, and in order to obtain development approval to create a 4 hectare parcel in the south east corner of the Development Land, he would need to make some allowance for road widening by way of a set back from Main North Road. Having regard to what he knew about the DPA and DPTI’s requirements, he considered that 10 metres would be the minimum set back required to satisfy DPTI that sufficient allowance had been made for the road widening, and thus to avoid DPTI making recommendations that might lead to the Council withholding approval. As a consequence, all of the plans prepared by Mr Curnow’s firm in the course of the land division application included a 10 metre set back of the Land from Main North Road.
By email dated 1 December 2016, sent by Mr Whitford of DPTI to Mr Doyle of the Council (and forwarded to Mr Curnow), DPTI confirmed that a 10 metre set back “should be sufficient”. The email was in the following terms:
As discussed [the development application] has identified a road widening provision of 10m on the western side of Horrocks Highway for the proposed collector road junction. The collector road junction is to be located some 900m north of Kangaroo Flat Road (measured from edge of bitumen to edge of bitumen) and will be within the subject property.
Concept planning has not been undertaken to determine the road design specifications or road widening requirements for the collector road junction. Planning thus far has been on the assumption that the junction will be a seagull treatment, which includes turn lanes for right in, right out and left in. It will also require a left turn in lane on the eastern side for the employment lands.
On the assumption of the seagull treatment then 10m should be sufficient for road widening purposes, including any stormwater swale that may be required to capture road runoff only.
It is recommended that the 9.9m be transferred to road reserve and a 0.1m buffer lot be created across the [Main North Road] frontage of the site to legally preclude access. This should be at no cost to DPTI.
Shortly thereafter all necessary approvals for the land division were obtained. Development approval was granted by the Council on 2 December 2016, and the DAC issued a Land Division Certificate on 7 December 2016. Confirmation of plan approval was obtained on 8 December 2016, and confirmation of plan deposit was issued by the Registrar-General on 19 December 2016.
During the course of his cross-examination, Mr Curnow gave some further context to his involvement, and to the circumstances giving rise to the seagull intersection and the 10 metre set back.
He acknowledged that he was working together with the other consultants advising Mr Oppedisano and PPR. In particular, he acknowledged that insofar as the seagull intersection was concerned, Mr Oppedisano and PPR were receiving advice from Mr Verco. Mr Curnow acknowledged that he did not have the expertise of Mr Verco; however, he maintained that he did have a significant amount of relevant experience that enabled him to form views (albeit informed by Mr Verco and certain ‘templates’ issued by DPTI) as to what was necessary in respect of making allowance for the seagull intersection.
Mr Curnow also acknowledged that earlier in 2016 there had been a version of the Concept Plan that did not include the seagull intersection. Rather, it had a “double–left–turns only” intersection at the point where the contemplated access road from the Development Land met Main North Road. Although Mr Curnow was not involved, there had then been a process of consultation and submissions, in which the defendants (through Mr Holmes and Mr Verco) participated and advocated for a change to a seagull intersection. A further Concept Plan was then issued, and it included the seagull intersection about which Mr Curnow gave evidence.
Mr Curnow described the essential difference between a double left turns only intersection and a seagull intersection. As the name suggests, the former would cater only for access into the Development Land by vehicles travelling north along Main North Road and hence turning left into the Development Land, and vehicles leaving the Development Land to turn left and head north up Main North Road. The seagull intersection, on the other hand, also allowed for entry into the Development Land from, and egress from the Development Land into, the south bound traffic along the eastern side of Main North Road.
The evidence was left unclear as to the difference, if any, in terms of road widening to the west (and hence onto the Land) that would be required by reason of the seagull intersection as opposed to the double left turns only intersection. Both types of intersection appear to require additional slip lanes on the western side of Main North Road. The seagull intersection, however, appears to require additional slip lanes or turning lanes on the eastern side of Main North Road that would not have been required by the double left turns only intersection.
Mr Curnow was not asked, and did not squarely address, whether the alteration from a double left turns only intersection to a seagull intersection had any implications for road widening and set back purposes. However, given that they both required additional slip lanes to the west of Main North Road, it may be that the change in the nature of the intersection did not make any difference in terms of the portion of the Land required by DPTI for road widening purposes. While the precise road widening implications of a double left turns only intersection would depend to some extent upon whether there was any realignment of Main North Road in the area of the intersection, this would be true also of the seagull intersection.
Mr Curnow acknowledged that even in relation to the seagull intersection he was not able to say precisely what length slip lanes would be required, and hence the extent to which the slip lane to the south of the intersection would continue past the northern boundary of the Land. He was aware of correspondence from Mr Verco that indicated that 150 metres to 200 metres would be necessary, although that correspondence also mentioned that the ultimate design might require 200 metres to 300 metres.
Mr Curnow was challenged in relation to his basis for arriving at a set back of 10 metres, as opposed to some lesser set back. In this respect there was correspondence that had previously suggested 30 metres might be required, but this was revised down to 10 metres once it was appreciated that there was land potentially available for road widening purposes on the eastern side of Main North Road. While acknowledging that he relied upon Mr Verco’s expertise (and Mr Verco’s communications with DPTI) in arriving at this figure, he maintained that it nevertheless represented his view of what was necessary in order that approval be obtained. He could not say definitively that a slightly lesser allowance would not have sufficed, but it was his expectation that 10 metres would be necessary to achieve approval.
I found Mr Curnow to be an honest and reliable witness. While at times he had difficulty in responding directly to questions, I am satisfied that he was doing his best to assist the Court. He made appropriate concessions as to the limits of his role, and the circumstances in which the seagull intersection and 10 metre set back came to be made, as summarised above. I accept his evidence, including as to the matters I have summarised above.
Analysis
Based upon the evidence of Mr Curnow, and the documentary evidence, I find that the reason for the 10 metre set back was to cater for the anticipated road widening associated with the seagull intersection on Main North Road to the north of the Land. Further, I find that the adjustment made by Mr Curnow to the Land in the Plan of Division was contractually permissible in that it was made to address an exigency that arose during the surveying task. While it was an exigency that arose by reason of a planning requirement, for the reasons explained earlier, I do not think this matters. It was an exigency required to be reflected in the surveying work contemplated by the Contract in order to achieve deposit of the Plan of Division by the Registrar-General.
In reaching this conclusion I have rejected a number of contentions relied upon by Masonic Homes.
First, Masonic Homes contends that the 10 metre set back was not occasioned by any surveying or planning exigency. It was occasioned by the inclusion of a seagull intersection in the Concept Plan, which came about with the involvement of the defendants.
It is true that the change in the Concept Plan from a double left turns only intersection to a seagull intersection came about as a result of a process of consultation and submissions in 2016 in which the defendants participated and, through Mr Verco and Mr Holmes, advocated for various changes, including the one made to the intersection. However, it is going too far, in my view, to say that the adjustment was one occasioned merely by the preference or convenience of the defendants.
The Concept Plan always included an intersection at the point where the access road from the Development Land met Main North Road. The only change was to the nature of the intersection; that is, from a double left turns only intersection to a seagull intersection. While the defendants supported and advocated for this change, no doubt because it provided greater access to and from the Development Land, the decision was not theirs. It was not included in the Concept Plan simply because the defendants asked for it. As the documents demonstrated, and as one would expect, the process reflected in the Concept Plan was a detailed one involving submissions from a number of interested parties and involving balancing a range of competing interests and objectives. In my view, despite the defendants’ involvement in the process, the planning requirements reflected in the Concept Plan, including the seagull intersection, are properly to be regarded as exigencies that the parties intended may be permissibly adjusted for by the Vendor’s surveyor in preparing the plans necessary for deposit of the Plan of Division by the Registrar-General.
Further, I note that even though the defendants were involved in the process that led to the change from the double left turns only intersection to the seagull intersection, the evidence did not go as far as establishing that this change required a greater set back than would otherwise have been required. While the 10 metre set back was considered appropriate on the assumption there would be a seagull intersection, it is significant in my view that the evidence did not establish that some lesser set back, or indeed no set back at all, would have been required by the originally contemplated double left turns only intersection. Given that the additional slip lanes required by the change to a seagull intersection were on the eastern side of Main North Road, it is not self-evident that this would be so. For this reason, even though Masonic Homes has established that the defendants had some involvement in the process that led to the change in the Concept Plan to include a seagull intersection, it has not established that it was involved in a process that created the need for the set back of 10 metres (as opposed to some lesser set back, or no set back at all).
Secondly, Masonic Homes contends that even if the seagull intersection was a relevant exigency, it cannot be said that it necessitated the set back that Mr Curnow included. Masonic Homes emphasised the lack of certainty as to precisely what set back was required, and the possibility that something less than 10 metres might have been sufficient. Masonic Homes also relied on the lack of certainty as to the length of the slip lanes contemplated by the proposed seagull intersection.
Although there was, and remains, some uncertainty about precisely what DPTI’s requirements will ultimately be, I do not regard this as inconsistent with a conclusion that the 10 metre set back was necessary. I consider that a practical approach to the surveying task was appropriate. While the surveyor was required to act reasonably in determining the planning requirements that needed to be addressed in the Plan of Division, and hence was not entitled to make assumptions based upon little more than guesswork, that is not what happened here. I am satisfied that reasonable efforts were made to ascertain what would be the minimum set back necessary to achieve the relevant approvals. In circumstances where DPTI was not in a position at the time to determine its precise ultimate requirements, it was reasonable for Mr Curnow to proceed with the 10 metre set back. This figure was not based on guesswork. It represented Mr Curnow’s opinion as to what would likely be necessary, based upon the advice of Mr Verco (which was in turn informed by his expertise and communications with DPTI) and Mr Curnow’s own understanding and experience of such matters.
While DPTI’s email communication of 1 December 2016 was in fairly equivocal terms, I do not read it as suggesting that there was any realistic prospect that some lesser allowance would have been sufficient. But even if a slightly lesser allowance might have been sufficient, I do not consider that Mr Curnow was required to do any more than what was done in order to attempt to secure approval for a lesser allowance. I do not think that Mr Curnow was required to submit plans that he considered probably contained insufficient allowance just to test the precise limits of what might have been approved. In my view, it was sufficient that the set back made represented Mr Curnow’s genuine and reasonable expectation of what would be necessary.
Further, I do not consider that the uncertainty that existed as to precisely where the intersection would be placed, and how long the required slip lanes would need to be, is of any moment. Even if the intersection was moved slightly, and despite the uncertainty as to the precise length of the slip lanes that would be required, it was clear that the slip lane to the south of the intersection would need to continue well below the northern boundary of the Land. As the northern boundary of the Land was expected to be only about 60 metres south of the access road, this would be so regardless of whether the slip lane ended up being 150 to 200 metres, or up to the 300 metre length that was also mentioned in the evidence. This was sufficient, in my view, to justify a uniform set back along the entire 235 metre length of the eastern boundary of the Land. It does not matter that there was some chance that DPTI’s requirements may not ultimately require a road widening along the full length of the Land. On the information available at the time, I am satisfied that the adjustment made by Mr Curnow was both reasonable and necessary.
To the extent Masonic Homes maintains a contention that Mr Curnow included the 10 metre set back merely because he was instructed to do so, I reject this contention. While Mr Curnow accepted that he took instructions from Mr Oppedisano, and sought his approval of the plans he prepared, I see nothing untoward about this. It is to be expected that a surveyor would seek their client’s approval before submitting plans, particular in circumstances where those plans involved yielding a portion of the land by way of an allowance for road widening. And there is no evidence to suggest that Mr Curnow included the 10 metre set back merely because he was requested or instructed do so by Mr Oppedisano. To the contrary, I am satisfied that it was included because it reflected Mr Curnow’s genuinely and reasonably held opinion as to what was likely to be necessary to obtain approval.
Nor does it matter, in my view, that Mr Curnow was significantly assisted by Mr Verco in forming the opinion he did. The relevant consideration is that the need to allow for road widening arose by reason of a planning requirement or exigency, and hence needed to be reflected in the surveyor’s work. In other words, the issue is whether the adjustment is one made by the surveyor to reflect an exigency that arose, not who identified the exigency or was involved in the process of determining what was necessary to ensure it was appropriately addressed.
Finally, Masonic Homes contended that even if the 10 metre set back was an adjustment made in response to a surveying or planning exigency, the adjustment was one that substantially altered the benefit received by Masonic Homes under the Contract. In support of this contention, Masonic Homes relied upon the fact that the Land in the Plan of Division no longer shared a boundary with Main North Road and no longer had any access of its own to Main North Road.
The first response to this contention is that if, as appears virtually inevitable, there is a road widening in due course, then the Land will end up sharing a boundary with (the widened) Main North Road. Viewed in this way, the issue is largely one of timing, and in my view is hardly significant in the scheme of things.
The second response is that insofar as the issue is one relating to access, I do not accept there is a factual foundation for this. There is no basis for believing that the parties intended that there would be direct access from the Land onto Main North Road. There is no reason to think that the parties intended that vehicle access to Main North Road would be provided other than internally via an access road from the Development Land. This is still what is contemplated. As for pedestrian access, the evidence does not establish that it was intended that there be pedestrian access direct from the Land onto Main North Road. Given that Main North Road is a 100 kph highway, I would not lightly infer that this was intended merely from the depiction of the Land abutting Main North Road in the Plan.
Further, it appears that direct access onto Main North Road from the Land would not in any event have been permitted. It was a requirement of the development approval by the Council that there be no direct access to or from Main North Road. And correspondence from DPTI made it plain that had the Council not made this a requirement, DPTI would have recommended a 0.1 metre reserve along the boundary between the Land and Main North Road so as to prevent private access.
In summary, I do not accept that the 10 metre set back required to allow for the anticipated seagull intersection has of itself occasioned any loss of access to Main North Road from the Land that it was otherwise contemplated by the parties that Masonic Homes would have. Nor am I otherwise satisfied that the 10 metre set back has substantially altered the Land, or the benefit contracted for by Masonic Homes.
Conclusion

I am not satisfied that the Land in the Deposited Plan does not conform with the Plan in the Contract, or that the conditions in special condition 6.1 have not been met. Masonic Homes’ claim for the amended relief must fail.
I dismiss the plaintiff’s claim for relief in paragraph 20(c) of the second statement of claim.