Mirvac (WA) Pty Ltd v Yeo - [2011] WASC 162

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: MIRVAC (WA) PTY LTD -v- YEO [2011] WASC 162

CORAM: KENNETH MARTIN J

HEARD: 10 MAY 2011

DELIVERED : 24 JUNE 2011

FILE NO/S: CIV 1329 of 2011

BETWEEN: MIRVAC (WA) PTY LTD
Plaintiff
AND
SIOK KEAK YEO
First Defendant
WOOI MUN CHEAH
Second Defendant

FILE NO/S :CIV 1330 of 2011

BETWEEN :MIRVAC (WA) PTY LTD
Plaintiff
AND
LESLEY MARGARET WILLIAMS
Defendant

FILE NO/S :CIV 1331 of 2011

BETWEEN :MIRVAC (WA) PTY LTD
Plaintiff
AND
JOAN ROSS GEBBIE
First Defendant
RONALD WILTON GEBBIE
Second Defendant

FILE NO/S :CIV 2778 of 2010

BETWEEN :HARMAN NOMINEES PTY LTD
Plaintiff
AND
LEIGHTON SHORES PTY LTD
First Defendant
MULTIPLEX LEIGHTON SHORES PTY LTD
Second Defendant
ROCKINGHAM PARK PTY LTD
Third Defendant

FILE NO/S :CIV 1497 of 2011

BETWEEN :LEIGHTON SHORES PTY LTD
Plaintiff
AND
ERIC CHIEN LOONG HOO
Defendant

Catchwords:

Preliminary issue - Statutory construction - Strata titles sale - Vendor and purchaser - Notice of avoidance under statute - Registered strata plan - Contractual provision allowing longer period than statutory minimum - Contractual provision allows vendor to unilaterally extend date for registration of strata plan - Application of section to contract - Contractual construction of registration date in context - Suggested severance of provisions in contract

Legislation:

Strata Titles Act 1985 (WA)

Result:

Preliminary issue answered in affirmative

Category: A

Representation:

CIV 1329 of 2011

Counsel:

Plaintiff:     Mr C L Zelestis QC & Ms T Di Cicco
First Defendant             :     Mr D H Solomon
Second Defendant         :     Mr D H Solomon

Solicitors:

Plaintiff:     Freehills
First Defendant             :     Solomon Brothers
Second Defendant         :     Solomon Brothers

CIV 1330 of 2011

Counsel:

Plaintiff: Mr C L Zelestis QC & Ms T Di Cicco
Defendant: Mr D H Solomon

Solicitors:

Plaintiff: Freehills
Defendant: Solomon Brothers

CIV 1331 of 2011

Counsel:

Plaintiff:     Mr C L Zelestis QC & Ms T Di Cicco
First Defendant             :     Mr D H Solomon
Second Defendant         :     Mr D H Solomon

Solicitors:

Plaintiff:     Freehills
First Defendant             :     Solomon Brothers
Second Defendant         :     Solomon Brothers

CIV 2778 of 2010

Counsel:

Plaintiff:     Mr N Hutley SC
First Defendant             :     Mr C L Zelestis QC & Mr A Logan
Second Defendant         :     Mr C L Zelestis QC & Mr A Logan
Third Defendant           :     Mr C L Zelestis QC & Mr A Logan

Solicitors:

Plaintiff:     Paul Fletcher & Co
First Defendant             :     Minter Ellison
Second Defendant         :     Minter Ellison
Third Defendant           :     Minter Ellison

CIV 1497 of 2011

Counsel:

Plaintiff: Mr C L Zelestis QC & Mr A Logan
Defendant: Mr D H Solomon

Solicitors:

Plaintiff: Minter Ellison
Defendant: Solomon Brothers

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

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Clifford and Bayley v Solid Investments Australia Pty Ltd [2009] VSC 223
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579
Process Minerals International Pty Ltd v Consolidated Minerals…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WASC 162
Decision Date: 24 JUNE 2011

CaseChat Overview and Summary

In the case of Mirvac (WA) Pty Ltd v Yeo, the dispute revolved around the interpretation of contractual provisions related to the registration of a strata plan within the context of the sale of strata titles. The case was heard in the Supreme Court of Western Australia. The primary legal issues centered on whether a contractual provision allowing for the unilateral extension of the registration date for a strata plan was valid, particularly in light of statutory provisions that mandated a notice of avoidance be given if the registration was not completed within a certain timeframe.

The court was tasked with interpreting the contractual language and determining whether the statutory provisions were applicable to the contracts in question. Specifically, the court examined whether the statutory requirement for notice of avoidance could be overridden by contractual provisions that allowed for a unilateral extension of the registration date. The court also considered whether the comma and use of the word 'or' in the definition of the 'Registration Date' affected the interpretation of the contract.

The court found that the contractual provisions allowing for a unilateral extension of the registration date were valid and did not contravene the statutory requirement for notice of avoidance. The court held that the use of 'or' in the definition of 'Registration Date' did not alter the meaning of the term, and the comma was merely a punctuation device. The court further determined that the statutory provisions did not apply to the contracts as they pertained to the registration of strata plans. As such, the court concluded that the contractual provisions were enforceable and did not conflict with the statutory requirements.

The court ordered that the contractual provisions allowing for a unilateral extension of the registration date were valid and enforceable. The court also held that the statutory provisions did not apply to the contracts in question. The final orders were made in favor of Mirvac (WA) Pty Ltd, affirming the enforceability of the contractual terms in question.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Within Special Conditions in each contract of sale, a term 'Registration Date' is defined (identically) (see cl 1.1 of the Mirvac Contracts and cl 2.1 of the Leighton Contracts), as:In this Contract:…Registration Date means the date which is 48 months after the Contract Date, or as that date may be extended under [cl 4(b) Mirvac Contracts and cl 7 Leighton Contracts]. This definition for 'Registration Date' may be observed to carry within it a deliberately placed comma which is followed by a use of the link word 'or', after the definition first refers to a date 48 months after the 'Contract Date'. The term 'Contract Date' is not defined in the Special Conditions. But that term's contextual meaning as being the date at which the parties' agreement was consummated is clearly ascertainable. The Mirvac and Leighton Contracts both then display in their Special Conditions the following provision (cl 4(a) of the Mirvac Contracts, cl 7(a) of the Leighton Contracts), which reads:(a)The parties agree that the Buyer may only exercise the Buyer's rights under s 70(4) of the Strata Titles Act if the Strata Plan has not been registered by the Registration Date. There is a slight difference as between cl 4(b) and the cl 7(b) in the Mirvac and Leighton Contracts. The Mirvac Contracts at cl 4(b) use the word 'will' in the phrase, 'will be extended'. The Leighton Contracts under cl 7(b) use 'may', in the phrase, 'may be extended'. Apart from that difference over one word, cl 4(b) and cl 7(b) in the Mirvac and Leighton Contracts otherwise replicate each other. They provide:(b)If the registration of the Strata Plan is delayed or potentially delayed as a result of one or more causes or occurrences beyond the control of the Seller which prevents the Seller registering the Strata Plan, the Registration Date will ['may' in the Leighton Contracts] be extended to the date which the Seller reasonably determines to take into account the effect, or likely effect, of the delay or potential delay. There is a greater differentiation in the terminology between cl 4(c) of the Mirvac Contracts and cl 7(c) of the Leighton Contracts. They respectively provide:[Mirvac Contracts:]4(c)The Seller will, on request by the Buyer, advise the Buyer of any extension of the Registration Date.[Leighton Contracts:]7(c)The Seller shall advise the Buyer in writing of any extension of the Registration Date. The Mirvac Contracts envisage a purchaser's request, in order for a purchaser (Buyer) to be told of an extension to the Registration Date that is unilaterally decided upon by the Seller. The Leighton Contracts provision 7(c) is a touch more courteous in operation towards the Buyer, who 'shall' be advised of such a unilateral extension by the vendor. Regarding these contractual provisions, some preliminary observations going towards their contractual interpretation can now be made. In Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 [594] and [595] and Process Minerals International Pty Ltd v Consolidated Minerals Pty Ltd [2010] WASC 266 [38], I set out at some length some relevant principles governing contractual interpretation, which I will apply, but not repeat again. Obviously, the abiding wisdom of Sir Harry Gibbs' observations in Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99, 109 ‑ 110 present considerations at the forefront of a construction exercise in commercial circumstances. I would also mention McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579, Gleeson CJ at 589 [22].