Pollak v Yapp - [2019] NSWCA 150

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Pollak v Yapp [2019] NSWCA 150
Hearing dates: 31 May 2019; written submissions 5 and 6 June 2019
Decision date: 20 June 2019
Before: Bell P at [1];
Payne JA at [2];
White JA at [3]
Decision:
Appeal dismissed with costs.

Catchwords:
CONTRACTS — Construction — Interpretation — Contract for sale of land — Special condition in contract required vendor to ensure all development conditions complied with prior to completion — Whether warranty had effect of requiring all works subject of development approval to be completed —Special condition contained disclosure that some works were carried out in conformity with development consent but lower staircase requires replacement — Whether disclosure amounts to warranty that all works subject of development approval have been completed — Where some but not all works the subject of development approval in fact completed —— Whether provision of interim occupation certificate capable of satisfying vendors’ obligation to provide an occupation certificate
BUILDING AND CONSTRUCTION — Occupation certificates — Whether interim occupation certificate that certifies some but not all of works the subject of development approval means that whole premises cannot be lawfully occupied — Whether occupation certificate relates to entire property or merely part of property on which certified works situated — Meaning of “altered portion” of existing building
Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 109C, 109H, 109M, 109N
Environmental Planning and Assessment Act 2017 (NSW)
Environmental Planning and Assessment Regulation 2000 (NSW), regs 149, 154, 155
Cases Cited: Birrell v Dryer (1884) 9 App Cas 345
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342
Levison v Farin [1978] 2 All ER 1149
North v Marina [2003] NSWSC 64; (2003) 11 BPR 21,359
Teele v Federal Commissioner of Taxation (1940) 63 CLR 201; [1940] HCA 3
Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17
Yapp v Pollak [2019] NSWSC 449
Texts Cited: Kim Lewison and David Hughes, The Interpretation of Contracts in Australia (2012, LawBook Co)
Category: Principal judgment
Parties: Joseph Pollak (Appellant)
Ian Martin Yapp (First Respondent)
George Orena III (Second Respondent)
Representation:
Counsel:
J Stoljar SC with G Farland
BA Coles QC with P B Walsh
Solicitors:
Sachs Gerace Broome (Appellant)
Day Legal (Respondents)

File Number(s): 2019/134106
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2019] NSWSC 449

Date of Decision:

24 April 2019

Before:

Darke J

File Number(s):

2019/8599

HEADNOTE

[This headnote is not to be read as part of the decision]

The appellant appealed from the orders of a judge of the Equity Division requiring…

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 Pollak v Yapp

Details

AGLC: Pollak v Yapp [2019] NSWCA 150
Case: [2019] NSWCA 150
Decision Date: 20 June 2019

CaseChat Overview and Summary

The appeal concerned a contract for the sale of land where the purchasers, Pollak, alleged the vendor, Yapp, had breached a special condition requiring the vendor to ensure all development conditions were complied with prior to completion. The dispute centred on whether this condition, coupled with a disclosure in the contract, amounted to a warranty that all works subject to the development approval had been completed. The purchasers argued that certain works, specifically a lower staircase, had not been completed in conformity with the development consent, and that the vendor had failed to provide a satisfactory occupation certificate. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were: first, whether the special condition in the contract, read in conjunction with the disclosure regarding the staircase, constituted a warranty that all works the subject of the development approval had been completed; and second, whether the provision of an interim occupation certificate, which certified some but not all of the works, was capable of satisfying the vendor's obligation to provide an occupation certificate for the entire premises. The court also considered the meaning of an "altered portion" of an existing building in the context of occupation certificates.

The Court of Appeal held that the special condition did not operate as a warranty that all works subject to the development approval had been completed. The disclosure that the lower staircase required replacement was interpreted as an acknowledgement that some works might not be fully compliant, rather than a representation that all works were completed. Furthermore, the court found that an interim occupation certificate could satisfy the vendor's obligation, as it certified the lawful occupation of the altered portion of the building, which was the subject of the development approval. The court reasoned that an occupation certificate relates to the lawful occupation of the premises or the altered portion thereof, and an interim certificate was sufficient in this instance.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Pollak v Yapp [2019] NSWCA 150
Hearing dates:	31 May 2019; written submissions 5 and 6 June 2019
Decision date:	20 June 2019
Before:	Bell P at [1]; Payne JA at [2]; White JA at [3]
Decision:	Appeal dismissed with costs.
Catchwords:	CONTRACTS — Construction — Interpretation — Contract for sale of land — Special condition in contract required vendor to ensure all development conditions complied with prior to completion — Whether warranty had effect of requiring all works subject of development approval to be completed —Special condition contained disclosure that some works were carried out in conformity with development consent but lower staircase requires replacement — Whether disclosure amounts to warranty that all works subject of development approval have been completed — Where some but not all works the subject of development approval in fact completed —— Whether provision of interim occupation certificate capable of satisfying vendors’ obligation to provide an occupation certificate BUILDING AND CONSTRUCTION — Occupation certificates — Whether interim occupation certificate that certifies some but not all of works the subject of development approval means that whole premises cannot be lawfully occupied — Whether occupation certificate relates to entire property or merely part of property on which certified works situated — Meaning of “altered portion” of existing building
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 109C, 109H, 109M, 109N Environmental Planning and Assessment Act 2017 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW), regs 149, 154, 155
Cases Cited:	Birrell v Dryer (1884) 9 App Cas 345 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 HP Mercantile Pty Ltd v Hartnett [2016] NSWCA 342 Levison v Farin [1978] 2 All ER 1149 North v Marina [2003] NSWSC 64; (2003) 11 BPR 21,359 Teele v Federal Commissioner of Taxation (1940) 63 CLR 201; [1940] HCA 3 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 Yapp v Pollak [2019] NSWSC 449
Texts Cited:	Kim Lewison and David Hughes, The Interpretation of Contracts in Australia (2012, LawBook Co)
Category:	Principal judgment
Parties:	Joseph Pollak (Appellant) Ian Martin Yapp (First Respondent) George Orena III (Second Respondent)
Representation:	Counsel: J Stoljar SC with G Farland BA Coles QC with P B Walsh Solicitors: Sachs Gerace Broome (Appellant) Day Legal (Respondents)
File Number(s):	2019/134106
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2019] NSWSC 449 Date of Decision: 24 April 2019 Before: Darke J File Number(s): 2019/8599