New South Wales
Court of Appeal
CITATION: Sharjade Pty Ltd v The Commonwealth of Australia; RAAF (Landings) Ex-Servicemen Charitable Fund Pty Ltd (formerly Darwinia Estate Pty Ltd) v Sharjade Pty Ltd [2009] NSWCA 373 HEARING DATE(S): 19, 20 August 2009
JUDGMENT DATE:
26 November 2009JUDGMENT OF: Hodgson JA at 1; Young JA at 136; Sackville AJA at 157 DECISION: In Darwinia’s application for leave to appeal:
(1) Leave to appeal granted.
(2) Notice of Appeal to be filed within fourteen days.
(3) Appeal allowed.
(4) Orders of primary judge in relation to Sharjade’s claim against Darwinia set aside.
(5) In lieu thereof, Sharjade’s claim against Darwinia dismissed with costs.
(6) Sharjade to pay Darwinia’s costs of the application and appeal, and to have a certificate under the Suitors’ Fund Act 1951 if otherwise eligible.
In Sharjade’s appeal:
(1) Appeal dismissed with costs.CATCHWORDS: CONTRACTS – Option agreement between Commonwealth and ex-service organisation for latter to purchase Commonwealth land – Exercise of option – Whether concluded contract for sale then existed – Requirements of such contract as to payment of money – Notice by Commonwealth purporting to make time of the essence for making payments – Payments not made – Commonwealth gives notice of termination – Whether termination effective. - CONTRACTS – Agreement between ex-service organisation and developer concerning development of land – Promise by former to actively promote and assist developer to effect pre-sales of units in development – Promise by developer to arrange finance for the development – Breach by ex-service organisation of its obligation concerning pre-sales – Breach by developer of its obligation concerning finance – Ex-service organisation gives notice of termination – Whether termination effective – Whether developer’s breach such as to justify termination – Whether terminating party precluded by its own breach from effectively terminating agreement. - TORTS – Inducing breach of contract – Elements of tort – Whether Commonwealth, by purportedly terminating option agreement, induced breach by ex-service organisation of its contract with developer. LEGISLATION CITED: Conveyancing Act 1919 s 13
UCPR 14.10CATEGORY: Principal judgment CASES CITED: Baulkham Hills Hospital Pty Limited v GR Securities Pty Limited (1986) 40 NSWLR 622
Bremer Vulkan Schiffbau und Maschinenfabrik v South Indian Shipping Corporation Limited [1981] AC 909
The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
DTR Nominees Pty Limited v Mona Homes Pty Limited [1978] HCA 12; (1978) 138 CLR 423
Foran v Wight [1989] HCA 51; (1989) 168 CLR 385
Frankcombe v Foster Investments Pty Limited [1978] 2 NSWLR 41
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61; (2007) 233 CLR 115
Kyrwood v Drinkwater [2000] NSWCA 126
Laurinda Pty Limited v Capalaba Park Shopping Centre Pty Limited [1989] HCA 23; (1989) 166 CLR 623
Lee v Surfers Paradise Beach Resort Pty Ltd [2008] QCA 29; [2008] 2 Qd R 249
Louinder v Leis [1982] HCA 28; (1982) 149 CLR 509
Masters v Cameron [1954] HCA 72
Continue reading Sharjade Pty Ltd v Commonwealth
Sign in free to access the full text
Details
- AGLC
- Sharjade Pty Ltd v Commonwealth [2009] NSWCA 373
- Case
- [2009] NSWCA 373
- Decision Date
CaseChat Overview and Summary
Sharjade Pty Ltd (Sharjade) and Darwinia Pty Ltd (Darwinia) were parties to proceedings in the Supreme Court of New South Wales concerning an option agreement for the purchase of Commonwealth land and a subsequent development agreement. Sharjade, as the developer, sought to enforce its rights against Darwinia, an ex-service organisation, and the Commonwealth. The primary judge made orders in favour of Sharjade against Darwinia, but dismissed Sharjade's claim against the Commonwealth. Sharjade appealed these decisions.
The Court of Appeal was required to determine whether a concluded contract for sale existed between the Commonwealth and Darwinia upon the exercise of an option, particularly in light of payment obligations. It also had to consider whether Darwinia's termination of its agreement with Sharjade was effective, given alleged breaches by both parties, and whether the Commonwealth had induced a breach of contract by Darwinia.
The Court of Appeal found that the option agreement between the Commonwealth and Darwinia did not constitute a concluded contract for sale upon exercise, as essential terms regarding payment had not been satisfied. Consequently, Darwinia's purported termination of its agreement with Sharjade was also ineffective. The court further held that the Commonwealth had not induced a breach of contract by Darwinia. Accordingly, the appeal by Sharjade against Darwinia was dismissed, and the orders of the primary judge in relation to Sharjade's claim against Darwinia were set aside and replaced with a dismissal of that claim. Sharjade was ordered to pay Darwinia's costs.
The Court of Appeal was required to determine whether a concluded contract for sale existed between the Commonwealth and Darwinia upon the exercise of an option, particularly in light of payment obligations. It also had to consider whether Darwinia's termination of its agreement with Sharjade was effective, given alleged breaches by both parties, and whether the Commonwealth had induced a breach of contract by Darwinia.
The Court of Appeal found that the option agreement between the Commonwealth and Darwinia did not constitute a concluded contract for sale upon exercise, as essential terms regarding payment had not been satisfied. Consequently, Darwinia's purported termination of its agreement with Sharjade was also ineffective. The court further held that the Commonwealth had not induced a breach of contract by Darwinia. Accordingly, the appeal by Sharjade against Darwinia was dismissed, and the orders of the primary judge in relation to Sharjade's claim against Darwinia were set aside and replaced with a dismissal of that claim. Sharjade was ordered to pay Darwinia's costs.
Orders
Orders of the court
In Darwinia’s application for leave to appeal:
(1) Leave to appeal granted.
(2) Notice of Appeal to be filed within fourteen days.
(3) Appeal allowed.
(4) Orders of primary judge in relation to Sharjade’s claim against Darwinia set aside.
(5) In lieu thereof, Sharjade’s claim against Darwinia dismissed with costs.
(6) Sharjade to pay Darwinia’s costs of the application and appeal, and to have a certificate under the Suitors’ Fund Act 1951 if otherwise eligible.
In Sharjade’s appeal:
(1) Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.