CITATION: Powercell Pty Ltd v Cuzeno Pty Ltd [2004] NSWCA 51 HEARING DATE(S): 25 February 2004 JUDGMENT DATE:
12 March 2004JUDGMENT OF: Meagher JA at 1; Giles JA at 2; Santow JA at 84 DECISION: Appeal dismissed. Appellant pay the costs of the appeal. CATCHWORDS: Joint venture - appellant sold home units off the plan - agreement terminating joint venture - respondent to take over as vendor under the contracts with the purchasers - whether agreed to take over all the contracts or only some - on facts, held all the contracts - whether agreement so far as concerned taking over as vendor unenforceable in an action for damages by force of s 54A of the Conveyancing Act 1919 - whether not a contract for sale of land because no sale between appellant and respondent or because respondent not obliged to take over a contract if a purchaser did not want to proceed - held unenforceable - whether respondent estopped from relying on s 54A - whether an equitable estoppel without appellant being caused to assume that respondent would not rely on s 54A - whether estoppel only from the making of the agreement - held no estoppel. CASES CITED: Actionstrength Ltd v International Glass Engineering IN.GL.EN SpA (203) 2 AC 541;
Birmingham v Renfrew (1937) 57 CLR 666;
Brown v Robertson (1890) 16 VLR 786;
Collin v Holden (1989) VR 510;
Commonwealth v Verwayen (1990) 170 CLR 394;
Cuzeno Pty Ltd v Powercell Pty Ltd [1999] NSWCA 344;
Dale v Hamilton (1846) 5 Hare 369; 67 ER 955;
Dalgety & Co Ltd v Gray (1919) 26 CLR 249;
De Nichols v Curlier (1900) 2 Ch 410;
Forster v Hale (1800) 5 Ves 308; 31 ER 604;
Gray v Dalgety & Co Ltd (1916) 21 CLR 509;
Hawkesworth v Turner (1930) 46 TLR 389;
Hodgson v Johnson (1858) EB & E; 120 ER 666;
Horsey v Graham (1869) LR 5 CP 9;
Horton v Jones (1935) 53 CLR 475;
J C Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282;
Kilpatrick v Mackay (1878) 4 VLR (E) 28;
Lees v Fleming (1980) Qd R 162;
O'Rourke v Hoeven (1974) 1 NSWLR 622;
PMT Partners Pty Ltd (in liquidation) v Australian National Parks and Wildlife Service (1955) 184 CLR 301;
Powercell v Cuzeno [2003] NSWSC 600;
Ramsden v Dyson (1865) LR 1 HL 129;
Riches v Hogben (1985) 2 Qd R 292 (McPherson J); (1986) 1 Qd R 515 (Full Court);
Thomas v Williams (1830) 10 B & C 664; 109 ER 597;
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387;PARTIES :
Powercell Pty Ltd - Appellant
Cuzeno Pty Ltd - RespondentFILE NUMBER(S): CA 40768/03 COUNSEL: J Ireland SC & C Dimitriadis - Appellant
T G R Parker & R E Steel - RespondentSOLICITORS: Willis & Bowring, Miranda - Appellant
Michie Shehadie & Co - Respondent
LOWER COURTJURISDICTION:
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Details
- Case
- [2004] NSWCA 51
- Decision Date
CaseChat Overview and Summary
Powercell Pty Ltd (the appellant) and Cuzeno Pty Ltd (the respondent) entered into an agreement to terminate a joint venture concerning the sale of home units off the plan. The dispute arose from the interpretation of this termination agreement, specifically whether the respondent agreed to take over all the contracts with purchasers or only a selection of them. The matter was heard in the Court of Appeal of New South Wales.
The Court of Appeal was required to determine several legal issues. Firstly, it needed to ascertain the true construction of the termination agreement regarding the extent of the respondent's obligation to assume the vendor role under the existing contracts with purchasers. Secondly, the Court had to consider whether the agreement, in so far as it related to the respondent taking over as vendor, was unenforceable by reason of section 54A of the Conveyancing Act 1919 (NSW). This involved determining if the agreement constituted a contract for the sale of land, and whether the respondent's obligation was conditional on purchasers wishing to proceed. Finally, the Court had to decide if the respondent was estopped from relying on section 54A, and if so, whether this estoppel arose from the making of the agreement itself or required the appellant to assume the respondent would not rely on the statutory provision.
The Court held that the agreement required the respondent to take over all the contracts with purchasers. However, it found that the agreement, in so far as it obliged the respondent to take over as vendor, was unenforceable under section 54A of the Conveyancing Act 1919. This was because the agreement was not a contract for the sale of land between the appellant and the respondent, and the respondent's obligation was not absolute but contingent on purchasers wishing to proceed. Furthermore, the Court determined that no estoppel arose that prevented the respondent from relying on section 54A.
Consequently, the appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
The Court of Appeal was required to determine several legal issues. Firstly, it needed to ascertain the true construction of the termination agreement regarding the extent of the respondent's obligation to assume the vendor role under the existing contracts with purchasers. Secondly, the Court had to consider whether the agreement, in so far as it related to the respondent taking over as vendor, was unenforceable by reason of section 54A of the Conveyancing Act 1919 (NSW). This involved determining if the agreement constituted a contract for the sale of land, and whether the respondent's obligation was conditional on purchasers wishing to proceed. Finally, the Court had to decide if the respondent was estopped from relying on section 54A, and if so, whether this estoppel arose from the making of the agreement itself or required the appellant to assume the respondent would not rely on the statutory provision.
The Court held that the agreement required the respondent to take over all the contracts with purchasers. However, it found that the agreement, in so far as it obliged the respondent to take over as vendor, was unenforceable under section 54A of the Conveyancing Act 1919. This was because the agreement was not a contract for the sale of land between the appellant and the respondent, and the respondent's obligation was not absolute but contingent on purchasers wishing to proceed. Furthermore, the Court determined that no estoppel arose that prevented the respondent from relying on section 54A.
Consequently, the appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed. Appellant pay the costs of the appeal.
Background
Background to the litigation
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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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