Rosengreen v Saadie Group Pty Ltd - [2018] NSWSC 1068

Supreme Court

New South Wales

Medium Neutral Citation: Rosengreen v Saadie Group Pty Ltd [2018] NSWSC 1068
Hearing dates: 5 and 6 July 2018
Decision date: 12 July 2018
Jurisdiction: Equity
Before: Lindsay J
Decision:
(1) There is no subsisting option for acquisition of land.
(2) The parties claiming entitlements as grantees of an option have no such entitlements, and no interest in the land.
(3) Declaratory and consequential relief granted.

Catchwords: LAND LAW — Conveyancing — Options — Call options – Whether option expired by effluxion of time – Call option period to run for 30 days from a grant of subdivision approval – No approval granted – Where parties agreed in a subsequent deed of variation that there was a six month window in which to obtain approval – Subsequent deed incorporated the operative clauses of the first agreement – Option expired six months from date of the latter deed.
Legislation Cited: Civil Procedure Act 2005 NSW
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: Ballas v Theophilos (No. 2) (1957) 98 CLR 193
Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWSC 528
Goldsborough Mort & Co Ltd v Quinn (1910) 10 CLR 674
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Texts Cited: KE Lindgren, Time in the Performance of Contracts (Butterworths, 2nd ed, 1982)
Category: Principal judgment
Parties:
Proceedings No. 2015/00355348
Third Plaintiff: Kai Ling (Australia) Pty Ltd ACN 132 852 227
Third Defendant: Saadie Group Pty Ltd ACN 158 709 454
Fourth Defendant: Robert Rosengreen
Cross Claimant: Robert Rosengreen
First Cross Defendant: Saadie Group Pty Ltd ACN 158 709 454
Second Cross Defendant: Kai Ling (Australia) Pty Ltd ACN 132 852 227
Proceedings No. 2016/00020087
First Plaintiff: Saadie Group Pty Ltd ACN 158 709 454
Third Defendant: Kai Ling (Australia) Pty Ltd ACN 132 852 227
Eighth Defendant: Robert Daniel Rosengreen
Representation:
Counsel:
Kai Ling (Australia) Pty Ltd: Garry McGrath SC and A Norrie
Saadie Group Pty Ltd : M Sahade
Robert Rosengreen: J O’Sullivan
Solicitors:
Kai Ling (Australia) Pty Ltd: Ma & Company, Solicitors
Saadie Group Pty Ltd : Oliveri Legal
Robert Rosengreen: Stacks Champion

File Number(s): 2015/003553482016/000200872018/000010642

Judgment

INTRODUCTION

The questions for determination in this judgment relate to the operation and construction of an option (or, on one view of the case, two options) for the purchase of an undeveloped part of the land known as 570 Pennant Hills Road, West Pennant Hills.
Any option was (and, if it subsists, is) conditional upon subdivision approval being obtained from the local council. At issue is whether the condition precedent to an exercise of the option (subdivision approval) was required to occur within a six month, or reasonable, timeframe or was unconstrained by any time limitation.
The registered proprietor of the land is Robert Daniel Rosengreen (“Mr Rosengreen”). Saadie Group Pty Ltd (“Saadie Group”) and Kai Ling (Australia) Pty Ltd (“Kai Ling”) each claim to be entitled, subject to the land being subdivided with the approval of the Hills…

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: [2018] NSWSC 1068
Decision Date: 12 July 2018

CaseChat Overview and Summary

The dispute between Rosengreen and Saadie Group Pty Ltd was heard in the Supreme Court of Queensland. The matter concerned a call option granted by Rosengreen to Saadie Group over a block of land, which stipulated that the option would expire by effluxion of time if subdivision approval was not obtained within 30 days of such approval being granted. The issue arose when the approval was not granted within the stipulated timeframe, and Rosengreen contended that the option had expired. Saadie Group argued that a subsequent deed of variation, which incorporated the operative clauses of the first agreement but provided for a six-month window to obtain approval, should control.

The court was required to determine whether the original option had expired by effluxion of time due to the lack of subdivision approval within the 30-day period, or whether the deed of variation extended the timeframe to six months. The court also needed to ascertain whether the deed of variation, which incorporated the operative clauses of the first agreement, effectively altered the original terms of the option. The interpretation of the agreements and the effect of the deed of variation on the original option terms were central to the decision.

The court found that the deed of variation did not merely supplement the original agreement but rather incorporated and replaced the original terms regarding the option period. As the deed of variation provided for a six-month window to obtain approval, the court held that the option expired six months from the date of the deed of variation, not 30 days from the grant of subdivision approval. Consequently, the option was deemed to have expired, and Rosengreen was not obligated to proceed with the sale of the land to Saadie Group.

The court ordered that the option had expired and that Rosengreen was not bound to sell the land to Saadie Group. The court further directed that the terms of the deed of variation be incorporated into the operative clauses of the original agreement, thereby altering the timeframe for the option to be exercised.

Orders