Riverview Estates (Queensland) Pty Ltd v Goldtaper Pty Ltd

[1994] QCA 17

IN THE COURT OF APPEAL	[1994] QCA 017
SUPREME COURT OF QUEENSLAND

Appeal No. 140 of 1993

Before The President
Mr Justice Davies
Justice White

[Goldtaper v. Riverview Estates]

BETWEEN:

RIVERVIEW ESTATES (QUEENSLAND) PTY. LTD.

(Plaintiff) Respondent

AND:

GOLDTAPER PTY. LTD.

(Defendant) Appellant

Appeal No. 139 of 1993

BETWEEN:

GOLDTAPER PTY. LTD.

(Applicant) Appellant

AND:

RIVERVIEW ESTATES (QUEENSLAND) PTY. LTD.

(Respondent) Respondent

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 02/03/94
These are appeals from a judgment and orders given and made in the Trial Division on 2 July, 1993. The proceedings concern a contract for the sale and purchase of land between the appellant as vendor and the respondent as purchaser dated 11 September 1992. The respondent seeks to uphold (i) a decree for specific performance of the contract made on an application for summary judgment in action No.688 of 1993 and (ii) complementary relief which was granted in favour of the respondent on the appellant's originating summons No.585 of 1993, in which it sought a declaration that it had validly terminated the contract and an order that the respondent's caveat over the land, No.L471443R, be removed. The appellant seeks in its notices of appeal to have the orders made below set aside and that:

(i)  it be ordered that the respondent's application for summary judgment be dismissed;

(ii) it be ordered that either party have leave to apply to a Judge in Chambers for directions for the trial of the action, including directions that the action be tried speedily;

(iii) it be declared that, upon the proper construction of the contract, clause 3.01 conferred an entitlement on either party to determine the contract upon the non-occurrence by 30 April 1993 of any of the events referred to in the proviso to that clause; and

(iv) the appellant have leave to apply to a Judge in Chambers for the removal of caveat No.L471443R.

Both parties also seek orders for costs.
These appeals are concerned only with the construction of the contract. If the respondent's construction is correct, the appeals should be dismissed. If the appellant's construction is correct, then there are factual issues to be tried, since the respondent contends that the appellant lost any right it would otherwise have had to terminate the contract by its failure to comply with its contractual obligations.
The land sold formed part of the land contained in two certificates of title, which the contract required the appellant to subdivide into three lots, one of which was to be transferred to the respondent in exchange for the purchase price. The respondent proposed to construct a town- house development on the land which it acquired, and a development plan was one of a number of attachments to the contract. Before the planned development could proceed, it was necessary for the land to be rezoned; depending on the new zone it might have been necessary for the respondent to obtain a town planning consent; and ultimately the respondent would require a Building Permit from the local authority, the Albert Shire Council. Provision was made with respect to such matters in the parties' contract.
The present dispute centres upon clauses 3 and 4 of the contract, which provide:

"3. DATE FOR COMPLETION
3.01 The Date for Completion shall be the 29th day of

January, 1993, provided however that if a separate Certificate of Title has not at the time issued in respect of the Land Sold and/or the Approvals (referred to in special condition 4 hereof) have not been obtained and the re-zoning (being part of the Approvals) duly gazetted, then the Date for Completion shall be the first working day following the expiration of a period of seven (7) days notice in writing from the Vendor to the Purchaser of the issue of the said Certificate of Title, and of obtaining of all of the Approvals and the said rezoning, provided further that if the said separate Certificate of Title has not issued, and the Approvals have not been obtained and the said re-zoning (part of the Approvals) gazetted by the 30th day of April 1993, then either the Vendor or the Purchaser shall be entitled, by notice in writing to the other, to terminate this Contract, whereupon all moneys paid hereunder by the Vendor to the Purchaser or to the Stakeholder shall be refunded in full, and interest accumulated on the deposit moneys shall be dealt with as hereinbefore provided, and neither party shall have any further claim against the other.

3.02 The Vendor agrees that it will take all steps as are reasonably available to it to obtain as quickly as practicable the registration of the necessary plan of subdivision (hereinafter referred to) and the issue of the said separate Certificate of Title and the obtaining of the Approvals and the said gazettal.

4. APPROVAL FROM THE COUNCIL OF THE SHIRE OF ALBERT

4.01 The Vendor and the Purchaser agree that this Contract is conditional, as a condition subsequent for the benefit of the Purchaser upon the Vendor obtaining such approvals (herein called the "Approvals") in writing from the Council as shall be necessary to enable the Purchaser to lodge with the Council, its application for a Building Permit

for the construction on the Land Sold of the development of residential accommodation units as depicted in the Plan of Development a copy of which is annexed hereto and marked "C" without there existing at the time any Town Planning or other related impediment to the issue by the Council of the said Building Permit.

4.02 It is acknowledged by the Vendor and the Purchaser

that the Approvals shall include, of necessity,
subdivisional approval into the three (3) lots set
out and described in the plan annexed hereto and
marked "B", approval in principle in respect of
the Plan of Development a copy of which is annexed
hereto and marked "C", and approval of the removal
of the Land Sold from its existing zoning and
inclusion of it in a zone, which either permits
the construction of the said residential
accommodation units in accordance with the Plan of
Development a copy of which is annexed hereto and
marked "C", as of right, or permits such
construction with consent of the Council, and, if
required Town Planning Consent for the said Plan
of Development.

4.03 As is hereinbefore provided it is agreed that the

Vendor shall, at its expense, seek to obtain the
Approvals as quickly as practicable in the
circumstances. To that end, it is agreed that the
Purchase shall give to the Vendor sufficient
direction in respect of the said Plan of
Development for the Vendors architect to complete
the said Plan of Development within seven (7) days

of the date hereof.

4.04 The Vendor agrees that it will lodge for approval

the said Plan of Development and any other
necessary material and will do all things and take
all steps as are reasonably available to it to
obtain the Approvals as quickly as possible in all
the circumstances. The Vendor will keep the
Purchaser informed, in writing, of progress in

relation to its seeking to obtain the Approvals.

4.05 The parties hereto acknowledge that the Approvals

issued by the Council will contain certain
conditions, some of which will apply to the Land
Sold and the aforementioned Plan of Development,
and some of which will apply to the balance of the
land retained by the Vendor. The conditions
applying to the Land Sold be they conditions in
respect of subdivision, re-zoning and/or town
planning consent, are hereinafter referred to as

the "Council's Conditions".

4.06 The Vendor will forthwith upon its receipt of all

details in writing of the Council's Conditions
provide a copy thereof to the Purchaser. The
Purchaser shall have a period of seven (7) working
days in which to consider the Council's
Conditions. The Purchaser agrees that it will take
no objection to any such Condition which is
expressly contemplated by the feasibility study
(hereinafter called the "Feasibility") prepared by
the Vendor. It is expressly agreed however that
the Purchaser may take objection to any such
condition which necessarily involves material
expenditure in respect of the completion of the
construction proposed by the said Plan of
Development beyond that provided for in the
Feasibility. The Purchaser may also object to any
condition which is imposed as a consequence of the
Vendor's proposals in respect of the balance land
held by it and referred to in paragraph 1.01
hereof, and in addition may object to the
Council's Conditions as a whole if those
Conditions not deal in the usual way with the
issues of headworks, charges, park contribution
and other external contributions. A copy of the
Feasibility is exhibited hereto and identified by
a copy thereof being marked as follows:
"Feasibility Study. Exhibit 1 to a certain
Contract dated the
day of 1992 between Goldtaper Pty Ltd as
Vendor and Riverview Estates (Queensland) Pty Ltd

as Purchaser"

The said exhibit shall be further identified by
execution of the exhibit marking on behalf of both
parties and it is agreed that the actual date of
this Contract shall be inserted in the exhibit
marking. Pending completion hereof the said
exhibit 1 shall be retained by the Vendor's
Solicitors and at completion shall be handled to
the Purchaser. In the event that the Purchaser
shall take reasonable objection to any of the
Council's Conditions outside the scope of
Feasibility, it shall within the period of a
further seven (7) working days from the
aforementioned period of seven (7) working days
for consideration or Council's Conditions, give to
the Vendor notice in writing of its objections
specifying all relevant details and indicating in
writing the Purchaser's required changes in
respect of Council's Conditions to which it
objects. The Vendor shall then have a further
period, not exceeding thirty (30) days in which to
negotiate with the Council to seek modification of
Council's Conditions to comply with the
requirements of the Purchaser. The Vendor agrees
that it will take all steps reasonably available
to it to seek successfully conclude such

negotiation.

4.07 In the event that despite the efforts of the

Vendor the Vendor is unsuccessful in achieving
variation of such of the Council's Conditions as
are objected to by the Purchaser, the Purchaser
may after the expiration of the said period of
thirty (30) days or after the specified date for
completion namely the 29th day of January, 1993,
whichever shall be the earlier, give notice in
writing to the Vendor terminating this Contract,
which notice shall specify that it is given
pursuant to this paragraph 4.07. If this Contract
is terminated by the Purchaser pursuant to this
paragraph 4.07, then all moneys paid by the
Purchaser to the Vendor or to the Stakeholder
hereunder shall be refunded in full, and interest
on such money shall be dealt with as hereinbefore
provided, and neither party shall have any further
claim against the other.

4.08 It is expressly acknowledged that the Approvals

required to be obtained by the Vendor and
Council's Conditions to be dealt with as
hereinbefore provided shall relate and be in
respect of only the matters of subdivision,
re-zoning, approval of the Plan of Development as
set out in the said Plan, a copy of which is
annexed hereto and marked "C" and, if required,
the issue of Town Planning Consent, and, subject
to the provisions of paragraph 4.06 hereof shall
not extend to any conditions or any matter or
thing required by the Council as a consequence of
the Purchaser's subsequent application for a

building permit.

4.09 It is agreed that if as a consequence of the

advertising required in respect of the said
re-zoning and if required the said application for
Town Planning Consent there is any objection, and
if after approval by the Council (if applicable)
there is any objector appeal to the Planning and
Environment Court, either in relation to re-zoning
or in relation to Town Planning Consent, then the
Vendor shall respond to any such appeal and shall
take such steps as are reasonably available to it,
in the said Court, (but not in any Court of Appeal
therefrom) to confirm Council's relevant
decisions. If any such Appeal does eventuate the
Vendor shall give notice in writing to the
Purchaser advising the Purchaser of the outcome,
which notice shall state that it is given pursuant

to this paragraph 4.09.

4.10 If the Approvals or any of them are not obtained

from the Council, in accordance with the foregoing
the Vendor shall appeal against Council's relevant
decision or decisions to the said Planning and
Environment Court, and shall take all steps
reasonably available to it to reverse the relevant
decision or decisions of the Council.

4.11 Notwithstanding all of the foregoing provisions of this special condition 4, it is agreed that if all of the Approvals are not obtained upon conditions

acceptable to the Purchaser, after implementation
of the foregoing provisions of this special
condition 4 in that regard, and the said re-zoning
gazetted by the 30th day of April, 1993, or by
such later date as may be agreed upon in writing
between the Vendor and the Purchaser at the time,
then the Purchaser shall be entitled to terminate
this Contract by notice in writing to the Vendor,
which notice shall state that it is given pursuant
to this paragraph 4.11, and as a consequence of
such termination all moneys paid hereunder by the
Purchaser to the Vendor or to the Stakeholder
shall be refunded in full, interest accumulated
thereon shall be dealt with as hereinbefore
provided, and neither party shall have any further
claim against the other."

The plan of subdivision was registered in time and a

separate certificate of title to the land sold issued on 29
April 1993, but the rezoning of the land had not been
gazetted by 30 April. By that time, disputes had arisen
between the parties.

By a letter dated 13 April, the respondent's solicitors

wrote to the appellant's solicitors saying "... our client
hereby gives your client notice that our client will proceed
to settlement on or before the 30th instant whether or not
the 'approvals' are in place. To this extent our client will
waive the conditions for securing such of the approvals as
may not be in place as at the date of settlement. Please
note that our client's intended waiver is not to be taken as
an abrogation of your client's obligation to proceed with
all due diligence to secure the approvals prior to
settlement."

The solicitors for the appellant responded by letter
dated 20 April, disputing the respondent's right to waive
the material conditions and claiming that the appellant was
entitled to determine the contract pursuant to clause 3.01
in the event that the conditions were not fulfilled by 30

April.

By a letter dated 22 April, the respondent's solicitors

asserted that it was ready, willing and able to complete.

By letter dated 27 April, the respondent's solicitors

wrote stating:

"In relation to clause 3 of the contract a reading of
the latter part of this clause reveals that three
events must occur before either the vendor or the
purchaser is entitled to terminate viz.:-

1.    If the separate Certificate of Title has not issued;

2.    If the Approvals have not been obtained;

3.    If the rezoning (part of the approval) is not gazetted by 30 April 1993.

Our client is of the view that your client is not able to establish these three events and accordingly is not able to terminate the contract pursuant to cl.3.01. Dealing firstly with events 2 and 3 the contract provides (3.01) that the approvals referred to in cl.3 are the same approvals as are referred to in cl.4. Our client has lawfully waived the approvals and so it follows that events 2 and 3 are not available to your client."

The respondent sought completion on 30 April 1993 but

the appellant refused to settle and, on 4 May 1993,

purported to terminate the contract pursuant to clause 3.01.

The resulting dispute led to the present litigation, in

which the trial judge held that the respondent was entitled
to waive the conditions of the contract under which
approvals were required, and proceeded on the basis that,
since it had done so and a separate certificate of title to
the land sold had issued prior to 30 April 1993, there was
no foundation for the appellant's termination under the
proviso to clause 3.01. Specific performance was

accordingly decreed.

Clauses 3 and 4 of the contract must be read together

and, so far as possible, reconciled. Clause 3 refers to and
is, in part, dependent upon clause 4 which, in the
circumstances, provides a suitable starting point.

Clause 4.01 and 4.02 are of central importance and give rise to two points of considerable difficulty.

Firstly, what rights were given to the respondent by

the provision in clause 4.01 to the effect that the contract
was subject to "a condition subsequent for the benefit of"
the respondent? Ordinarily, this would connote that neither
party was obliged to complete the sale until the condition
was fulfilled or was waived by the respondent (see, eg.,
Perri v. Coolangatta Investments Pty. Ltd. (1982) 149 CLR
537, 543, 553, 560, 565),at least insofaras effective waiver
was possible: one of the approvals required was an approval
to subdivision, which could not be waived since subdivision
was essential to the lawful transfer of the land sold. In
the events which transpired, this difficulty did not arise
because subdivision was completed and a separate certificate
of title issued by the due date.

The appellant contended that the words quoted above

from clause 4.01 did not permit the respondent to waive
performance of the condition specified but only to elect
whether or not to terminate the contract for its non-
fulfilment, leaving the appellant free to exercise its
rights, including any contractual power of termination if
the material circumstances existed; for example, under
clause 3.01: cf Sandra Investments Pty. Ltd. v. Booth (1983)
153 CLR 153. One possible difficulty with this construction
is that it would leave the phrase in question in clause 4.01
with little or no practical operation additional to the
respondent's rights of termination under other parts of the
contract. The appellant sought to counter this with the
submission that the other sub-clauses of clause 4, notably
clauses 4.07 and 4.11, provide a charter of the appellant's
additional rights under clause 4.01. It was also pointed
out that there are differences in the circumstances which
permit termination under the second proviso in clause 3.01
and clause 4. The latter is primarily concerned with a lack
of satisfactory approvals - although clause 4.11 also refers
to a gazettal of rezoning - while the right of termination
in the second proviso in clause 3.01 is related to an
omission to obtain approvals, a gazetted rezoning (not
merely Council approval) and the issue of a separate
certificate of title (not merely subdivisional approval).
The rival contention for the respondent was, in effect, that
the phrase set out above from clause 4.01 should be given
its full, ordinary operation, and the appellant's power of
termination under the second proviso in clause 3.01 held to
apply only to those of the events there specified which, by
the due date, had neither occurred nor been waived by the
respondent pursuant to clause 4.01.

Secondly, the "condition subsequent for the benefit" of

the respondent for which cause 4.01 provides is related to
the appellant "obtaining such approvals ... in writing from
the Council as shall be necessary to enable the [respondent]
to lodge with the Council its application for a Building
Permit ... without there existing at the time any Town

Planning or other related impediment to the issue by the
Council of the said Building Permit." It was submitted for
the respondent that the words "from the Council" should be
omitted because it is necessary to do so "to avoid absurdity
or inconsistency": Fitzgerald v. Masters (1956) 95 CLR 420,
426-427. It was pointed out that, under the Building Act
1975, as amended, there would be an impediment to the issue
of the requisite Building Permit unless and until the land
was rezoned (see Building Act sections 30BA (1) and (2),
30BB and 30BC), and that rezoning would not be effected by
the Council's approval of the application for rezoning under
subsection 4.4(5) of the Local Government (Planning and
Environment) Act 1990 as amended, but only when the
Governor-in-Council had approved the rezoning by order in
council and the making of the order in council had been
notified in the Gazette: Local Government (Planning and
Environment) Act, ss.4.5(6), (9) and (11). Reliance was
also placed upon clause 4.02 of the contract; it was again
emphasised that a Council "approval" of rezoning would not
permit the construction of the buildings proposed by the
respondent "as of right" or "with consent", and that a
gazetted order in council was needed to effect a rezoning.
Further, a "Town Planning Consent" could be neither required
nor obtained after a Council approval to rezoning or unless
and until a rezoning had been finalised by gazettal of an
order in council. The appellant argued that the phrase "from
the Council" in the passage above quoted from clause 4.01 of
the contract (and repeated in the heading to the clause) was
a deliberately limiting provision which should be given full

effect; the clause was only concerned with "necessary"

Council approvals, and did not concern itself with
approvals from other sources which would also be "necessary"
before there would be "no impediment to the issue by the

Council of the .... Building Permit" to the respondent.

Clauses 4.03 and 4.04 of the contract are supplemental

to clause 3.02 and of little present relevance. It is also
convenient to pass over clauses 4.05 to 4.08 for the moment
and to consider them a little later in conjunction with

clause 4.11.

Clauses 4.09 and 4.10 are of limited significance,and

were referred to little, if at all, in the course of
argument. Both clauses address the possibility of planning
litigation in the course of the approvals process. While
express reference is made to Council approvals, it is
contemplated that one of the approvals needed might be a
Town Planning Consent, which would only be required or

obtained after gazettal of the rezoning.

A similar comment applies to clauses 4.05 to 4.08 and

4.11, which are substantially, if not wholly, concerned with
conditions imposed by the Council upon its approvals,
including a Town Planning Consent if required. Leaving
aside the need for a gazetted rezoning before any issue of
Town Planning Consent could arise, these clauses are
substantially aimed at expanding the respondent's rights in
order to provide it with rights in respect of conditional
Council approvals. Clauses 4.07 and 4.11 provide the
respondent with two additional rights of termination of the
contract which are not obviously consistent one with the
other. Under clause 4.07, the respondent might have
terminated the contract if conditions which were
objectionable to it had not been removed or varied within a
period calculated by reference to steps specified or by 29
January 1993, "whichever shall be the earlier". It is
necessary to quote from clause 4.11: "if all of the
Approvals are not obtained upon conditions acceptable to the
[respondent]... and the said rezoning gazetted by the 30th
day of April, 1993, ... then the [respondent] shall be
entitled to terminate this Contract ...". Subject to a
point noted below, the right given to the respondent to
terminate the contract if the rezoning was not gazetted by
30 April 1993 was merely repetitious of a similar right
previously given to the respondent by the second proviso to
clause 3.01 (and arguably clause 4.01). The other right of
termination given by clause 4.11 to the respondent might
also partially overlap with clause 3.01; it is arguable that
the phrase "if all of the approvals are not obtained upon
conditions acceptable to the [respondent]" encompasses
refusals as well as unsatisfactory conditional approvals.
However, in the context, the better view is that clause 4.11
is concerned only with unsatisfactory conditional approvals
by the Council (and gazettal of rezoning), and that
refusals, or at least Council refusals, fall to be dealt
with by the earlier clauses.

Before turning generally to clause 3 of the contract,

it is convenient to discuss one aspect of clause 3.01 which
also arises in respect of clause 4.11. Under the latter
clause, the respondent might have terminated the contract if
all of the approvals were not obtained on acceptable
conditions "and" the rezoning was not gazetted by 30 April
1993. Under the second proviso to clause 3.01, either party
was entitled to terminate if a separate certificate to the

land sold had not issued, "and" the approvals had not been

obtained "and" the rezoning gazetted by that date. As can

be seen from its solicitor's letter of 27 April, the
respondent contended that the right of termination provided
for by the second proviso to clause 3.01 could have arisen
only if none of the events referred to, the issue of a
separate certificate of title, the obtaining of approvals

and the gazettal of rezoning, had occurred by 30 April 1993.

However, it is more consistent with the apparent purpose of

clause 3.01, and with the earlier portion of the clause
which provides for the fixing of the date for completion by
reference to all these events, to conclude that the right of
termination arose if any of the events had not occurred,
ie., unless all had occurred, subject of course to any
question of waiver.

Clauses 3.01 and 3.02 reflect the difficulty, to which

reference has already been made, concerning whether the
"Approvals" spoken of in the contract are confined to
Council approvals or include a gazetted approval of rezoning
by the Governor-in-Council. As the respondent pointed out,
"rezoning" would ordinarily be taken to mean an effective
rezoning, which requires gazettal of an order in council,
and clause 3.01 twice speaks of "rezoning" as "part of the
Approvals". Further, there is some scope for reading that
clause as though a "duly gazetted" or "gazetted" rezoning
was being spoken of as "part of the Approvals". However, as
the appellant emphasised, the parenthetical references to
"part of the Approvals" separate the references in clause
3.01 to rezoning and gazettal, thereby providing some
support for the view that the "rezoning" spoken of as "part
of the Approvals" is a "rezoning" at a stage anterior to
gazettal; that is, a "rezoning" at the stage of approval by
the Council. Further basis for this is to be found in
clause 3.02, where "gazettal" is spoken of as additional to
"the obtaining of the Approvals", and in those parts of
clause 4 which contemplate that all "Approvals" are to be
obtained from the Council. The difficulty with this view,
principally associated with references to Town Planning

Consent, has already been noted.

There is no construction of these provisions which is

not open to objection. The Court must attempt to give
effect to the words used by the parties but in the context
of their apparent intention with respect to the purposes of
the disputed clauses. While the distinctions which exist
between various stages in the approvals process (for
example, between subdivisional approval by the Council and
the issue of a separate certificate of title by the
Registrar of Titles and between rezoning approval by the
Council and gazettal of the order in council notifying the
Governor-in-Council's approval of the rezoning) cannot be
ignored, they should not be allowed to distract attention
from the clear indication in the contract, especially in the
reference to the respondent's "benefit" in clause 4.01, that
the purpose of the steps required of the vendor under
clauses 3 and 4 (see also, for example, clause 8) was to
ensure that the land bought by the respondent was suitable
for its proposed development, while the appellant's
interest, which was shared by the respondent, was in
ensuring a timely outcome, either by completion of the sale
or termination of the contract.

With this in mind, it is appropriate to turn back to

the two difficulties noted at the outset in relation to

clause 4.01.

There is no necessary inconsistency between the

appellant's right of termination under the second proviso to
cause 3.01 and the respondent's right of waiver under clause
4.01, but there is a tension between the two rights.
Conflict can be avoided relatively simply by limiting the
respondent's right of waiver to the period prior to the
exercise of the appellant's right of termination, which did
not come into effect until 30.04.93. It is unnecessary to
decide whether the waiver had to have occurred by that date
(as it had), or whether a waiver prior to an act of

termination by the appellant was sufficient.

This raises the second difficulty. The appellant's

argument is that, in any event, the respondent's right of
waiver is limited to Council approvals and does not extend
to a gazettal of the rezoning. Thus, it is said, the
circumstances for the appellant's termination under the
second proviso to clause 3.01 came into operation after 30
April 1993 notwithstanding the respondent's earlier waiver

of the requirement of a gazetted rezoning.

There is strong literal support for this argument in

the contract, but there are also linguistic indications to
the contrary, including the repeated references to Town
Planning Consent as one of the requisite approvals.
Further, it would make no sense if the respondent could
waive the Council's approval to subdivision or rezoning but
not the subsequent steps of issue of a certificate of title
or gazettal of rezoning. Finally, such a conclusion would
run counter to the purposes for which the parties'
respective rights were inserted in the contract. In
particular, the respondent's interest lay in the land being
suitable for its development, not in some partially
satisfactory approvals. That was the purpose of the
"condition subsequent for [its] benefit".

As at 30 April 1993, the respondent was unconditionally

bound to the contract and, in accordance with the first
proviso to clause 3.01, the appellant was entitled to give
an immediate notice fixing a date for completion: Sandra
Investments Pty. Ltd. v. Booth. In these circumstances, the
purpose of the appellant's right to terminate the contract
under the second proviso to clause 3.01 was lacking. There
was no occasion for the appellant to bring the contract to
an end to avoid further delay.

Accordingly, while the appellant's contrary case is

certainly arguable, and it may be doubted whether this was a
suitable case for summary judgment, especially having regard
to the respondent's alternative factual assertions, the
judgment below should be affirmed and the appeals dismissed
with costs to be taxed.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 140 of 1993

Brisbane
[Goldtaper v. Riverview Estates]

BETWEEN:

RIVERVIEW ESTATES (QUEENSLAND) PTY. LTD.

(Plaintiff) Respondent

AND:

GOLDTAPER PTY. LTD.

(Defendant) Appellant

Appeal No. 139 of 1993

BETWEEN:

GOLDTAPER PTY. LTD.

(Applicant) Appellant

AND:

RIVERVIEW ESTATES (QUEENSLAND) PTY. LTD.

(Respondent) Respondent

The President
Mr Justice Davies

Justice White

Judgment delivered 02/03/94

Separate reasons for judgment of The President, Davies JA. and White J. The President and White J. concurring as to orders to be made. Davies JA. dissenting.

APPEALS DISMISSED, WITH COSTS TO BE TAXED.

CATCHWORDS:	CONTRACT - Sale of Land - waiver - condition precedent that approvals and gazettal of rezoning be completed by specified date - rezoning and gazettal requirements waived by respondent purchaser - requirements condition inserted for respondent's benefit - appellant terminated for non-fulfilment of condition precedent - whether respondent could unilaterally waive requirements - whether waiver disentitled appellant from termination.
Counsel:	Mr. G. Gibson Q.C. with him Mr. R.J. Douglas for the appellant/applicant Mr. P. Keane Q.C. with him Mr. P. O'Shea for the respondent/respondent
Solicitors:	Bell Rapp and Partners for the appellant/applicant Feez Ruthning for the respondent/respondent
Hearing Date:	14/02/94

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 139 of 1993

Brisbane
[Goldtaper Pty Ltd]

BETWEEN:

GOLDTAPER PTY LTD (A.C.N. 010 588 815)

(Applicant) Appellant

AND:

RIVERVIEW ESTATES (QUEENSLAND) PTY LTD

(A.C.N. 011 017 739)

(Respondent) Respondent
____________________________________________________________
__

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 140 of 1993

BETWEEN:

GOLDTAPER PTY LTD (A.C.N. 010 588 815)

(Defendant) Appellant

AND:

RIVERVIEW ESTATES (QUEENSLAND) PTY LTD

(A.C.N. 011 017 739)

(Plaintiff) Respondent

REASONS FOR JUDGMENT - WHITE J.

Judgment Delivered: 2/03/1994

The provisions under consideration in the contract are
far from clear and, as the President has observed, there is
no construction of them which is not open to objection.
However, for the reason set forth by him I am of the opinion
that the appeal should be dismissed with costs.