Nicholson v Hilldove Pty Ltd (No 3) - [2013] VSC 500

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

No. S CI 2013 2198

BETWEEN

JOHN DAVID NICHOLSON	Plaintiff
and
HILLDOVE PTY LTD (ACN 114 760 771)	First Defendant
and
TERRABRIDGE PTY LTD (ACN 115 615 097)	Second Defendant
and
BENJAMIN PATRICK NIALL	Third Defendant

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JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 3 and 16 September 2013
DATE OF JUDGMENT:	30 September 2013
CASE MAY BE CITED AS:	Nicholson v Hilldove Pty Ltd & Ors (No 3)
MEDIUM NEUTRAL CITATION:	[2013] VSC 500

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CONTRACT – Repudiation – Damages – Alleged loss of opportunity to nominate purchaser – No damages established – Nominal damages for repudiation of contract.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr K Hanscombe SC Ms K Bowshell	Williams Winter Solicitors
For the Defendants	Mr T Woodward SC Mr J Mereine	Minter Ellison

HIS HONOUR:

Introduction

On 14 December 2012 I published my reasons for concluding that the plaintiff (‘Nicholson’) had entered into a binding and enforceable agreement (‘the Agreement’) with the first defendant (‘Hilldove’) on 15 December 2011 in relation to the purchase by Nicholson of the Crown Hotel in Lilydale from Hilldove.[1]
[1]Nicholson v Hilldove Pty Ltd & Ors [2012] VSC 598 (‘the Judgment’). This Judgment (No 3) must be read together with the Judgment.

I do not propose to rehearse the facts and I will assume familiarity with the Judgment. Definitions and terms used in these reasons are the same as those used in the Judgment.

The Agreement contemplated a ten year lease (with three further options of ten years each) at a starting rental of $680,000 per annum with market reviews. The landlord, Terrabridge Pty Ltd (‘Terrabridge’), the second defendant in this proceeding, was not a party to the Agreement. It was not suggested by Nicholson that there was any obligation on the part of Terrabridge (whether promissory or representational) to grant a lease whether on the terms contemplated or at all. Rather, it was pleaded and submitted that there was an implied term of the Agreement that Hilldove, as a party related to Terrabridge, would procure the contemplated lease. It was further alleged that Hilldove had made representations to such effect.

It was held that there was no such implied term and that Hilldove had not made any representations to the effect alleged. [2]
[2]Ibid [127], [133]-[135].

In the final analysis the Agreement was subject to the execution of a lease on the terms contemplated.[3] However there was no obligation on the part of Terrabridge or Hilldove to grant or procure such a lease. It was a matter for negotiation between the parties. Clearly Nicholson has lost the opportunity to negotiate such a lease. Without a lease he would not have gone ahead with the purchase of the Crown Hotel.
[3]On 7 May 2013 I dismissed an application by Nicholson to re-open the case on the grounds that there was evidence of an existing lease and that this constituted…

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: [2013] VSC 500
Decision Date: 30 September 2013

CaseChat Overview and Summary

Nicholson v Hilldove Pty Ltd (No 3) involved the plaintiff, Nicholson, suing the defendants, Hilldove Pty Ltd, over alleged breaches of contract. Nicholson claimed damages for the loss of an opportunity to nominate a purchaser, which he asserted arose from the defendants' repudiation of a property sale agreement. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether Nicholson had established a loss of opportunity to nominate a purchaser, and if so, whether such a loss was a direct consequence of the defendants' repudiation of the contract. Additionally, the court needed to ascertain the appropriate measure of damages for the repudiation, considering the absence of established loss of opportunity damages.

The court held that Nicholson had not provided sufficient evidence to substantiate a loss of opportunity to nominate a purchaser. Consequently, the court ruled that the defendants were only liable for nominal damages for the repudiation of the contract, as there was no evidence of actual loss suffered by Nicholson due to the breach. The court found that the contract's terms did not provide for a specific loss of opportunity, and the claim for such damages was not substantiated.

The court ordered that Hilldove Pty Ltd pay Nicholson nominal damages for the repudiation of the contract, reflecting the breach without any additional compensation for an unsubstantiated loss of opportunity.

Orders