Reported Decision: (2006) NSW ConvR 56-171
Court of Appeal
CITATION: Thompson v White & Ors [2006] NSWCA 350 HEARING DATE(S): 15 November 2006
JUDGMENT DATE:
12 December 2006JUDGMENT OF: Ipp JA at 1; Tobias JA at 2; McColl JA at 153 DECISION: (a) Appeal allowed in part; (b) Set aside Declarations 1 and 2 made by Gzell J on 15 December 2005 but otherwise dismiss the appeal; (c) The appellant to pay the respondents’ costs of the appeal CATCHWORDS: REAL PROPERTY – sale and development – agreement – construction – whether agreement in nature of joint venture – whether formation of “joint venture company” essential for finding of joint venture agreement to develop property – whether sufficient indicia of joint venture agreement – CONTRACT – intention to contract – uncertainty – incompleteness – principles LEGISLATION CITED: Conveyancing Act 1919, s23C
Property Law Act 1969 (WA)
Real Property Act 1900, s 74MACASES CITED: Abjornson v Urban Newspapers Ltd [1989] WAR 191
Adamson v Hayes (1973) 130 CLR 276
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101
Baloglow v Konstanidis (2001) 11 BPR 20,721; [2001] NSWCA 451
Brambles Holdings Pty Ltd v Bathurst City Council (2001) 53 NSWLR 153
Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1
Fox v Percy (2003) 214 CLR 118
Gibson Motor Sport Merchandise Pty Ltd v Forbes [2005] FCA 749
Hagan v Waterhouse (1991) 34 NSWLR 308
Halloran v Minister Administering National Parks and Wildlife Act 1974 [2006] 80 ALJR 519
Industrial Rollformers Pty Ltd v Ingersoll-Rand (Australia) Ltd (2001) Aust Contract R 90-129
Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Aust) Pty Ltd (1988) 5 BPR 11,110
Khoury v Khoury [2006] NSWCA 184
Secretary, Department of Social Security v James (1990) 85 ALR 615
Sorna Pty Ltd v Flint [2000] WASCA 22
Terrex Resources NL v Magnet Petroleum Pty Limited [1998] 1 WAR 144
Theodore v Mistford Pty Ltd (2005) 79 ALJR 1503
Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106
United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1
Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32PARTIES: Byron Ward Thompson
Julian John White
Romeo Medina Libut
Aerated Concrete, Design and Construction Pty LtdFILE NUMBER(S): CA 40013/06 COUNSEL: A: D E Grieve QC / F Hicks
1R: In person
2&3R: G GeorgeSOLICITORS: A: SBA Lawyers, Rozelle
1R: Julian White, Warriewood
2&3R: Forsters, Solicitors, ManlyLOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 2685/03 (incorporating 5929/03) LOWER COURT JUDICIAL OFFICER: Gzell J LOWER COURT DATE OF DECISION: 15 December 2005 LOWER COURT MEDIUM NEUTRAL CITATION: Thompson v White & Anor; ACDC v Thompson [2005] NSWSC 1257
CA 40013/06
SC 2685/03
SC 5929/03Tuesday 12 December 2006IPP JA
TOBIAS JA
McCOLL JA
BYRON WARD THOMPSON v JULIAN JOHN WHITE & ORS
Judgment
1 IPP JA: I agree with Tobias…
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Details
- AGLC
- Thompson v White [2006] NSWCA 350
- Case
- [2006] NSWCA 350
- Decision Date
CaseChat Overview and Summary
Thompson (appellant) and White (respondents) were parties to an agreement concerning the sale and development of real property. The dispute centred on the construction of this agreement, specifically whether it constituted a joint venture and whether the formation of a "joint venture company" was a prerequisite for such a finding. The appeal was heard by Ipp JA, Tobias JA, and McColl JA.
The primary legal issues before the court were: firstly, whether the agreement between the parties was in the nature of a joint venture; and secondly, whether the formation of a "joint venture company" was essential for a finding that a joint venture agreement to develop the property had been formed. The court also considered whether there were sufficient indicia present to support the existence of a joint venture agreement, and the principles relating to intention to contract, uncertainty, and incompleteness in contract law.
The Court of Appeal found that while the parties had intended to enter into a joint venture, the agreement lacked the necessary certainty and completeness to be enforceable as a joint venture agreement. The court reasoned that the absence of a concluded agreement on essential terms, such as the specific contributions of each party and the management structure of the development, meant that the agreement was too uncertain to be given legal effect. The formation of a joint venture company was not considered essential, but the lack of a concluded agreement on fundamental aspects of the proposed joint venture was determinative.
The appeal was allowed in part. The Declarations 1 and 2 made by Gzell J on 15 December 2005 were set aside, but the appeal was otherwise dismissed. The appellant was ordered to pay the respondents' costs of the appeal.
The primary legal issues before the court were: firstly, whether the agreement between the parties was in the nature of a joint venture; and secondly, whether the formation of a "joint venture company" was essential for a finding that a joint venture agreement to develop the property had been formed. The court also considered whether there were sufficient indicia present to support the existence of a joint venture agreement, and the principles relating to intention to contract, uncertainty, and incompleteness in contract law.
The Court of Appeal found that while the parties had intended to enter into a joint venture, the agreement lacked the necessary certainty and completeness to be enforceable as a joint venture agreement. The court reasoned that the absence of a concluded agreement on essential terms, such as the specific contributions of each party and the management structure of the development, meant that the agreement was too uncertain to be given legal effect. The formation of a joint venture company was not considered essential, but the lack of a concluded agreement on fundamental aspects of the proposed joint venture was determinative.
The appeal was allowed in part. The Declarations 1 and 2 made by Gzell J on 15 December 2005 were set aside, but the appeal was otherwise dismissed. The appellant was ordered to pay the respondents' costs of the appeal.
Orders
Orders of the court
(a) Appeal allowed in part; (b) Set aside Declarations 1 and 2 made by Gzell J on 15 December 2005 but otherwise dismiss the appeal; (c) The appellant to pay the respondents' 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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