Opera Properties Pty Ltd v The Uniting Church in Australia Property Trust (NSW)

In this case, Opera Properties Pty Ltd sought to enforce a Put and Call Option Deed against The Uniting Church in Australia Property Trust (NSW). The Deed was intended to facilitate road access to the plaintiff’s development land by enabling the purchase of a subdivided portion of the defendant’s land. However, the envisaged subdivision was precluded by the commencement of the Pittwater Local Environmental Plan 2014. Despite this, the options under the Deed could still be exercised in the absence of development consent or registration of the subdivision. The contract would be formed upon exercise of either option, provided that the defendant would grant a right of carriageway over its land to benefit the plaintiff’s land if the subdivision was not registered for any reason three years after the date of the contract.

The primary legal issue before the court was whether the Pittwater Local Environmental Plan 2014 resulted in a fundamental commercial difference between the anticipated and actual performance of the Deed, effectively frustrating the contract. The court needed to determine whether the conveyance of the portion of the defendant's property was the sole purpose of the transaction or if the grant of the right of carriageway could be seen as an alternative means of achieving road access to the plaintiff’s land. If the latter was true, the Deed would not be discharged by frustration.

The court held that the conveyance of the portion of the defendant's property was not the only purpose of the transaction. The grant of the right of carriageway could be viewed as an alternative means of achieving road access to the plaintiff’s land. The fact that the subdivision was precluded by the Pittwater Local Environmental Plan 2014 did not render the contract fundamentally different from what the parties had contemplated. The court concluded that the Deed was not discharged by frustration, and the plaintiff was entitled to enforce the terms of the contract as agreed.

As a result, the court ordered that the defendant would be required to grant a right of carriageway over its land to benefit the plaintiff’s land, fulfilling the terms of the Put and Call Option Deed. The court did not find the contract to be frustrated, thereby allowing the plaintiff to proceed with its claim for the grant of the right of carriageway.