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No 1 Victoria Dragons Pty Ltd v AEN Developments Pty Ltd

No 1 Victoria Dragons Pty Ltd v AEN Developments Pty Ltd

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Case Copied 6 October 2022 73 min read

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Supreme Court

New South Wales

Medium Neutral Citation: No 1 Victoria Dragons Pty Ltd v AEN Developments Pty Ltd [2022] NSWSC 1345
Hearing dates: 29-31 August 2022; 5-9 September 2022; 13 September 2022
Date of orders: 6 October 2022
Decision date: 06 October 2022
Jurisdiction: Equity - Commercial List
Before: Black J
Decision:
Plaintiff succeeds in its primary claim and defendant fails in its cross-claim. Parties to bring in agreed short minutes of order, or otherwise their respective short minutes of order and submissions, within 7 days.

Catchwords:
CONTRACTS — Construction — Interpretation — Interpretation of a clause in a nomination deed for the development of a residential apartment building — Where the clause provided for a specific mix of one, two and three bedroom apartments but included a proviso that the mix “may be varied pursuant to” statutory and Council requirements — Whether the inclusion of studio apartments was a variation falling within that proviso.
CONTRACTS — Rectification — Intention — Common intention
CONTRACTS — Implied terms — Terms implied in fact
ESTOPPEL — Estoppel by representation — “Silence”
EVIDENCE — Affidavit evidence — Where substantial parts of the affidavits of three witnesses were copied between them.
WORDS AND PHRASES – “varied pursuant to”

Cases Cited:
- Armagas Ltd v Mundogas SA [1985] 1 Ll R 1
- Attorney-General (NSW); Ex rel Corporate Affairs v Australian Softwood Forests Pty Ltd [1979] 2 NSWLR 73
- Australian Broadcasting Commission v Australasian Performing Right Assn Ltd (1973) 129 CLR 99
- Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2000) 96 FCR 491; 169 ALR 324; [2000] FCA 2
- Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; (2019) 368 ALR 1; [2019] HCA 18
- Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 388 ALR 577; (2021) 151 ACSR 98; [2021] FCAFC 40
- Besier v Foster (1952) 94 CLR 526; [1952] HCA 14
- Birchill v Premier Holdings Pty Ltd [2011] NSWSC 1020
- BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282 –283; 52 ALJR 20
- Briginshaw v Briginshaw (1938) 60 CLR 336
- British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197
- Changizi v Rizaie [2021] NSWSC 613
- Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 346; [1982] HCA 24
- Commonwealth v Verwayen (1990) 170 CLR 394; 95 ALR 321; [1990] HCA 39
- Dentown Pty Ltd v PWI Group Pty Ltd as trustee of The Australia No 1 Group Trust (2019) 141 ACSR 330
- Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640; 306 ALR 25; [2014] HCA 7
- Esanda Ltd v Burgess [1984] 2 NSWLR 139
- ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
- Gunns…

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: [2022] NSWSC 1345
Decision Date: 06 October 2022

CaseChat Overview and Summary

No 1 Victoria Dragons Pty Ltd sued AEN Developments Pty Ltd for breach of contract. The dispute arose from a nomination deed for the development of a residential apartment building, where the contract specified a mix of one, two, and three bedroom apartments but allowed for variations "pursuant to" statutory and Council requirements. The plaintiff argued that the inclusion of studio apartments constituted an unauthorised variation, while the defendant claimed it was permissible under the proviso. The court needed to decide whether the inclusion of studio apartments was a variation that fell within the proviso in the nomination deed.

The court examined the language of the proviso and considered whether it allowed for the inclusion of studio apartments. The court found that the term "varied pursuant to" was ambiguous and needed to be interpreted in light of the overall context of the nomination deed. The court held that the proviso allowed for variations that were necessary to comply with statutory and Council requirements, and that the inclusion of studio apartments was not a variation but rather a permitted alteration to comply with such requirements. The court also considered the common intention of the parties and the principles of estoppel by representation and implied terms, but ultimately found that these principles did not alter the interpretation of the proviso.

The court concluded that the inclusion of studio apartments was a permissible variation under the proviso in the nomination deed. The court found that the defendant was not in breach of contract and dismissed the plaintiff's claim. The court also noted that the substantial copying between the affidavits of three witnesses did not affect the evidence's reliability.

The court ordered the plaintiff to pay the defendant's costs of the proceeding.

Orders