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Rivat Pty Ltd v B & N Elomar Engineering Pty Ltd

Rivat Pty Ltd v B & N Elomar Engineering Pty Ltd

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Case Copied 21 June 2007 35 min read

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Reported Decision:
(2007) NSW Conv R 56-186

New South Wales

Supreme Court

CITATION: Rivat Pty Ltd v B & N Elomar Engineering Pty Ltd [2007] NSWSC 638
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19 – 21 June, 11 - 13 & 15 December 2006, 1 & 27 March 2007

JUDGMENT DATE :
21 June 2007

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Contract for sale of land validly rescinded by vendor.

CATCHWORDS: CONTRACT [5] – General contractual principles – Offer and acceptance – Matters not giving rise to binding contract – Vagueness and uncertainty – Severability – Development application by reference to which one term of contract proceeded not annexed to contract or otherwise identified - CONTRACT [135] – Discharge, breach and defences to action for breach – Repudiation and non performance – Election and rescission – Generally – Rescission – Justification by circumstances not relied on at time of rescission - CONVEYANCING [4], [7] – Relationship of vendor and purchaser – Matters arising between contract and conveyance – Conditions of sale – Condition giving right of rescission – Other matters – Adequacy of notice of rescission – Unequivocal act terminating contract – Conditions precedent and subsequent – Consents of third persons – Local government approvals – Obligations of parties to obtain – Use of “best endeavours” or “all reasonable endeavours” – Whether necessary to undertake onerous obligations to obtain approval - INTERPRETATION [9] – General rules of construction of instruments – Where inconsistencies – Instruments partly written and partly printed – General principles.

LEGISLATION CITED: Trade Practices Act 1974 (Cth) s 52

CASES CITED: Ashdown v Kirk [1999] 2 Qd R 1
Barton v Fitzgerald (1812) 15 East 530 at 541; 104 ER 944
Caltex Oil (Aust) Pty Limited v Alderton (1964) 81 WN (Pt 1) (NSW) 297
Chamber Colliery Company Limited v Twyerould [1915] 1 Ch 268n
Concut Pty Ltd v Worrell (2000) 75 ALJR 312
Consolidated Credit Network v Illawarra Retirement Trust (No 2) [2005] NSWSC 1007
Dalsor Pty Limited v Roberts (2003) NSW ConvR 56-058
Foran v Wight (1989) 168 CLR 385
Glen Ayr Pastoral Pty Ltd v Terry Scott Pty Ltd (1974) 2 BPR 9215
Hardy v Wardy [2001] NSWSC 1141
Homburg Houtimport BV v Agrosin Ltd [2004] 1 AC 735
Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41
In Re Weston and Thomas’s Contract [1907] 1 Ch 244
In the Goods of De Rosaz (1877) 2 PD 66
Joyce v Realm Marine Insurance Co (1872) LR 7 QB 580
Layman Pty Ltd v Murray [1973] 2 NSWLR 863
Lewis v Barnett (1982) 264 EG 1079
North Shore Demolitions Pty Ltd v McKay [1978] 1 NZLR 454
Re Strand Music Hall Co Ltd (1865) 35 Beav 153; 55 ER 853
Rieger v Eaton & Sons Pty Ltd (1990) 6 BPR 13,770
Robertson v French (1803) 4 East 135; 102 ER 779
Shepherd v Felt and…

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: [2007] NSWSC 638
Decision Date: 21 June 2007

CaseChat Overview and Summary

In the case of Rivat Pty Ltd v B & N Elomar Engineering Pty Ltd, the parties were engaged in a dispute that came before the Supreme Court of New South Wales. Rivat Pty Ltd, the plaintiff, sought to enforce a contract for the sale of land and the provision of engineering services, while B & N Elomar Engineering Pty Ltd, the defendant, argued that the contract was not properly formed and that they were not obligated to complete the sale or services as agreed.

The primary legal issues before the court were whether the contract between the parties was validly formed, whether the contract contained sufficient certainty to be enforceable, and whether there had been a repudiation of the contract by either party. Additionally, the court needed to determine the obligations of the parties in obtaining necessary approvals and consents for the development, and whether there was adequate notice of rescission.

The court examined the formation of the contract and found that while there was an offer and acceptance, the contract lacked certainty in several respects, particularly in relation to the development application referenced in the contract. The court held that the vagueness and uncertainty of certain terms did not invalidate the entire contract, but rather those parts that could not be enforced. The court also determined that the defendant had repudiated the contract, justifying the plaintiff's decision to rescind. Regarding the obligations to obtain approvals, the court found that the term "best endeavours" did not require the defendant to undertake onerous obligations to secure approvals. Lastly, the court addressed the adequacy of the notice of rescission, concluding that it was sufficient to terminate the contract.

The court's final orders included a declaration that the contract was valid and enforceable in part, with certain terms void due to uncertainty. The court also rescinded the contract and awarded damages to the plaintiff for the defendant's repudiation.

Orders