Mitchell v Leafs Gully Farm Pty Ltd

[2016] NSWCA 92

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mitchell v Leafs Gully Farm Pty Ltd [2016] NSWCA 92

Hearing dates:

26 April 2016

Decision date:

03 May 2016

Before:

Beazley P at [1];
Leeming JA at [2];
Payne JA at [54]

Decision:

1. Appeal dismissed.

 

2. The parties to supply within 14 days either:

 

(a) agreed orders as to the costs of the appeal, or

 (b) the orders which they propose, any evidence in support of those orders, and submissions not exceeding 4 pages in support of the orders they propose.

Catchwords:

CONVEYANCING – option deed – construction of option – purported exercise by nominee of grantee – whether nominee of grantee entitled to benefit of credit towards purchase price of options fees previously paid – whether irrevocable offer excluded contractual provisions for crediting option fees

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), Pt 3A

Cases Cited:

Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR 460
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640
Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1959) SR (NSW) 122

Category:

Principal judgment

Parties:

Richard Gordon Mitchell (Appellant)
Leafs Gully Farm Pty Ltd (First Respondent)
AGL Power Generation Pty Ltd (Second Respondent)

Representation:

Counsel:
BA Coles QC, PT Russell (Appellant)
RG McHugh SC, J Hutton (First Respondent)
AP Lo Surdo SC, DR Meltz (Second Respondent)

  Solicitors:
Ashurst Australia Lawyers (Appellant)
Gadens Lawyers (First Respondent)
Herbert Smith Freehills (Second Respondent)

File Number(s):

2015/315247

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2015] NSWSC 1460

Date of Decision:

07 October 2015

Before:

Lindsay J

File Number(s):

2014/10856

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Leeming JA. I agree with his Honour’s reasons and with his proposed orders.

2. LEEMING JA: Following a hearing lasting five days and involving many factual and legal disputes, Mr Richard Gordon Mitchell appeals from the judgment of the primary judge ordering that a contract for the sale of land be specifically performed. Although Mr Mitchell’s notice of appeal contains nine grounds, Mr Coles QC, who with Mr Russell appeared for him, acknowledged at the outset that the principal question was the effect of the deed of option and series of deeds of variation and of novation which the parties had entered into.

3. The point is simply stated. The first respondent, Leafs Gully Farm Pty Ltd (LGF), is the nominee of the second respondent, AGL Power Generation Pty Ltd (AGL Power). It purported to exercise, as nominee, an option to acquire three parcels of land owned by Mr Mitchell in southwestern Sydney. The question is whether LGF was entitled to insist that it receive the benefit of $3,150,000 of option fees paid by the grantee of the option. Mr Mitchell accepted that he would have been obliged to give a credit to AGL Power…