Nergl Developments Pty Ltd v Vella - [2021] NSWCA 131

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nergl Developments Pty Ltd v Vella [2021] NSWCA 131
Hearing dates: 17 June 2021
Date of orders: 1 July 2021
Decision date: 01 July 2021
Before: Basten JA at [1];
Meagher JA at [74];
Leeming JA at [75]
Decision:
(1)   Direct that Kindelon Pty Ltd be identified as the second appellant.
(2)   Grant leave to the appellants to file the amended notice of appeal within 7 days.
(3)   Grant leave to the appellants to appeal from orders (1) and (2) made on 9 June 2021 with respect to the costs of the trial.
(4)   Set aside orders (1) and (2) made on 9 June 2021 and in their place order that:
(a)   Nergl and Kindelon are jointly and severally liable to pay to the plaintiff 80% of her costs of and relating to the proceedings in the Equity Division from 12 December 2018, up to and including 30 October 2019; and
(b)   Nergl is to pay 80% of the plaintiff’s costs of the proceedings in the Equity Division after 30 October 2019.
(5)   Otherwise dismiss the appeal.
(6)   Order Nergl to pay Ms Vella’s costs in this Court.

Catchwords:
CONTRACTS – construction – agreement resulting from mediation of dispute – heads of agreement – Masters v Cameron class 2 contract – proposed deed of release – parties to enter into deed to terminate earlier agreement – whether deed to include all terms of settlement
CONTRACTS – construction – agreement to grant easement – whether ambiguity – whether specified width included kerb, gutter and footpath
CONTRACTS – construction – implied terms – term to be necessary to give business efficacy – whether temporary easement for construction to be implied – whether expansion of easement to permit construction of roundabout to be implied

Legislation Cited:
Conveyancing Act 1919 (NSW), s 88B
Environmental Planning and Assessment Act, ss 80, 95
Uniform Civil Procedure Rules 2005 (NSW), r 36.17

Cases Cited:
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266; [1977] HCA ? (PC)
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24
Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72

Category: Principal judgment
Parties:
Nergl Developments Pty Ltd (First Appellant)
Kindelon Pty Ltd (Second Appellant)
Vicky Vella (First Respondent)
Michael Vella (Second Respondent)
Peter Vella (Third Respondent)
Representation:
Counsel:
J R J Lockhart SC / P Gaffney (Appellants)
J Sexton SC / D Neggo (First Respondent)
Submitting Appearances (Second and Third Respondents)
Solicitors:
MinterEllison (Appellants)
Macpherson Kelley Lawyers (First Respondent)
Joseph Grassi & Associates (Second and Third Respondents)

File Number(s): 2021/8185
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2020] NSWSC 1405; [2021] NSWSC 648

Date of Decision:

13 October 2020

Before:

Slattery J

File Number(s):

2018/312416

Judgment

BASTEN JA: This appeal concerns the effect of an agreement entered following a successful mediation in relation to proceedings in the Equity Division…

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.

Continue reading Nergl Developments Pty Ltd v Vella

Details

AGLC: Nergl Developments Pty Ltd v Vella [2021] NSWCA 131
Case: [2021] NSWCA 131
Decision Date: 01 July 2021

CaseChat Overview and Summary

In the New South Wales Court of Appeal, Nergl Developments Pty Ltd and Kindelon Pty Ltd (appellants) appealed against orders made by the primary judge concerning a dispute with Ms Vella (respondent). The dispute arose from a mediation process that resulted in heads of agreement, intended to terminate an earlier agreement. A proposed deed of release was to be entered into by the parties, and the central question was whether this deed was intended to encompass all terms of the settlement.

The court was required to determine several legal issues. Firstly, it had to construe the heads of agreement and the proposed deed of release to ascertain whether a binding contract had been formed, particularly in light of the principles established in *Masters v Cameron* regarding agreements to enter into a formal contract. Secondly, the court considered the construction of an easement, specifically whether a specified width included a kerb, gutter, and footpath, and whether any ambiguity existed in its description. Finally, the court examined whether implied terms were necessary to give business efficacy to the agreement, including a temporary easement for construction and an expansion of the easement to permit the construction of a roundabout.

The Court of Appeal reasoned that the heads of agreement, when read in conjunction with the proposed deed of release, indicated that the parties intended to be bound by the terms agreed upon in the heads of agreement, even though a formal deed was yet to be executed. The court found that the proposed deed was not a condition precedent to the formation of a binding agreement, but rather a document to give effect to the terms already settled. Regarding the easement, the court determined that the specified width was not ambiguous and did not include the kerb, gutter, and footpath. Furthermore, the court held that no temporary construction easement or expansion of the easement for a roundabout was to be implied, as such terms were not necessary for the business efficacy of the agreement.

The appeal was otherwise dismissed, with the court setting aside the primary judge's costs orders and substituting new orders regarding the apportionment of costs between the parties in the Equity Division. Nergl Developments Pty Ltd was ordered to pay Ms Vella’s costs in the Court of Appeal.

Orders

Orders of the court

(1) Direct that Kindelon Pty Ltd be identified as the second appellant.

(2) Grant leave to the appellants to file the amended notice of appeal within 7 days.

(3) Grant leave to the appellants to appeal from orders (1) and (2) made on 9 June 2021 with respect to the costs of the trial.

(4) Set aside orders (1) and (2) made on 9 June 2021 and in their place order that:

(a) Nergl and Kindelon are jointly and severally liable to pay to the plaintiff 80% of her costs of and relating to the proceedings in the Equity Division from 12 December 2018, up to and including 30 October 2019; and

(b) Nergl is to pay 80% of the plaintiff’s costs of the proceedings in the Equity Division after 30 October 2019.

(5) Otherwise dismiss the appeal.

(6) Order Nergl to pay Ms Vella’s costs in this Court.

Background

Background to the litigation

Full text does not contain this section.

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

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Medium Neutral Citation:	Nergl Developments Pty Ltd v Vella [2021] NSWCA 131
Hearing dates:	17 June 2021
Date of orders:	1 July 2021
Decision date:	01 July 2021
Before:	Basten JA at [1]; Meagher JA at [74]; Leeming JA at [75]
Decision:	(1) Direct that Kindelon Pty Ltd be identified as the second appellant. (2) Grant leave to the appellants to file the amended notice of appeal within 7 days. (3) Grant leave to the appellants to appeal from orders (1) and (2) made on 9 June 2021 with respect to the costs of the trial. (4) Set aside orders (1) and (2) made on 9 June 2021 and in their place order that: (a) Nergl and Kindelon are jointly and severally liable to pay to the plaintiff 80% of her costs of and relating to the proceedings in the Equity Division from 12 December 2018, up to and including 30 October 2019; and (b) Nergl is to pay 80% of the plaintiff’s costs of the proceedings in the Equity Division after 30 October 2019. (5) Otherwise dismiss the appeal. (6) Order Nergl to pay Ms Vella’s costs in this Court.
Catchwords:	CONTRACTS – construction – agreement resulting from mediation of dispute – heads of agreement – Masters v Cameron class 2 contract – proposed deed of release – parties to enter into deed to terminate earlier agreement – whether deed to include all terms of settlement CONTRACTS – construction – agreement to grant easement – whether ambiguity – whether specified width included kerb, gutter and footpath CONTRACTS – construction – implied terms – term to be necessary to give business efficacy – whether temporary easement for construction to be implied – whether expansion of easement to permit construction of roundabout to be implied
Legislation Cited:	Conveyancing Act 1919 (NSW), s 88B Environmental Planning and Assessment Act, ss 80, 95 Uniform Civil Procedure Rules 2005 (NSW), r 36.17
Cases Cited:	BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266; [1977] HCA ? (PC) Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72
Category:	Principal judgment
Parties:	Nergl Developments Pty Ltd (First Appellant) Kindelon Pty Ltd (Second Appellant) Vicky Vella (First Respondent) Michael Vella (Second Respondent) Peter Vella (Third Respondent)
Representation:	Counsel: J R J Lockhart SC / P Gaffney (Appellants) J Sexton SC / D Neggo (First Respondent) Submitting Appearances (Second and Third Respondents) Solicitors: MinterEllison (Appellants) Macpherson Kelley Lawyers (First Respondent) Joseph Grassi & Associates (Second and Third Respondents)
File Number(s):	2021/8185
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2020] NSWSC 1405; [2021] NSWSC 648 Date of Decision: 13 October 2020 Before: Slattery J File Number(s): 2018/312416