District Court
New South Wales
Medium Neutral Citation: Metricon Homes Pty Ltd v Carbone [2017] NSWDC 256 Hearing dates: 24 August 2017; 1 September 2017 Date of orders: 14 September 2017 Decision date: 14 September 2017 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) Judgment for the plaintiff on its Statement of Claim.
(2) The parties are to bring in Short Minutes of Order within seven days reflecting these reasons including any appropriate claim for interest.
(3) Judgment for the cross-defendant/plaintiff on the Amended Cross-Claim. The Amended Cross-Claim is dismissed.
(4) The defendant/cross-claimant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(5) Liberty to the parties to apply to vary the costs order in the preceding paragraph.
(6) Exhibits to be returned after 28 days.Catchwords: Contract – deed of put and call option – proper construction of deed – applicable contractual principles – whether plaintiff entitled to refund of call option fees where draft plan of subdivision not registered within stipulated time – whether plaintiff entitled to retain call option fees where nominee of plaintiff breached contract for sale of land contemplated under deeds of put and call option – consequences of rescission of deeds
Taxes and duties - stamp duty – whether nominations of persons dutiable – effect of an undertaking being offered under UCPR Part 31.13 – enforceability of documents not stampedLegislation Cited: Duties Act 1997 (NSW)
Home Building Act 1989 (NSW)
Uniform Civil Procedure RulesCases Cited: C&P Syndicate Pty Ltd v Reddy [2013] NSWSC 643
Caringbah Investments Pty Ltd v Caringbah Business & Sports Club Ltd (In Liq) [2016] NSWCA 165
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Feldman v GNM Australia Ltd [2017] NSWCA 107
HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342
JLF Corporation Pty Ltd v Matos [2016] QCA 355
Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184
McCallum v National Australia Bank Ltd [2000] NSWCA 218
McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457
MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd (BC200500862) (unreported, 3 March 2005)
Nguyen v Taylor [1992] 27 NSWLR 48
Perri v Coolangatta Investments Pty Ltd (1982) 41 ALR 441
Phillips Fox (A Firm) v Westgold Resources NL [2000] WASCA 85
Photios v Cousen [2015] NSWSC 336
Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673
Reliance Financial Services Pty Ltd v Baddock [2001] NSWSC 857
Smoothseas Pty Ltd v Lawloan Mortgages Pty Ltd [2007] QCA 445
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Tarango Land Pty Ltd v Lyons [2005] VSC 491
Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17
WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd [2016] NSWCA 297
Zhang v ROC Services (NSW) Pty Ltd [2016] NSWCA 370Texts Cited: Professor P Butt, The Standard Contract…
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- Case
- [2017] NSWDC 256
- Decision Date
CaseChat Overview and Summary
The court had to determine the proper construction of the deed of put and call option, applying relevant contractual principles. It had to consider whether Metricon was entitled to a refund of the call option fees due to the delay in registering the draft plan of the subdivision. The court also had to assess whether Metricon could retain the call option fees despite the breach of contract by its nominee. Moreover, the court had to examine the effect of the rescission of the deeds and its consequences. The enforceability of the deeds, in light of the stamp duty implications and the lack of stamped documents, was also a legal issue before the court.
The court held that Metricon was entitled to a refund of the call option fees due to the delay in registering the draft plan of the subdivision. It also found that Metricon was entitled to retain the call option fees, as the breach by its nominee did not absolve Metricon of its right to the fees. The court further determined that the rescission of the deeds did not absolve Metricon of its right to the call option fees. Regarding the stamp duty implications, the court ruled that the nominations of persons were not dutiable and that the undertaking offered under UCPR Part 31.13 did not affect the enforceability of the deeds.
The court ordered that judgment be entered in favour of Metricon on its Statement of Claim, with the parties to bring in Short Minutes of Order within seven days. The Amended Cross-Claim was dismissed, and the defendant was to pay Metricon’s costs of the proceedings as agreed or assessed. The parties were granted liberty to apply to vary the costs order. Exhibits were to be returned after 28 days.
Orders
Orders of the court
(1) Judgment for the plaintiff on its Statement of Claim.
(2) The parties are to bring in Short Minutes of Order within seven days reflecting these reasons including any appropriate claim for interest.
(3) Judgment for the cross-defendant/plaintiff on the Amended Cross-Claim. The Amended Cross-Claim is dismissed.
(4) The defendant/cross-claimant is to pay the plaintiff’s costs of the proceedings as agreed or assessed.
(5) Liberty to the parties to apply to vary the costs order in the preceding paragraph.
(6) Exhibits to be returned after 28 days.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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