Urban Fortune Global Ltd v Deicorp Projects (Partridge Ave) Pty Ltd (No 2) - [2022] NSWSC 1703

Supreme Court

New South Wales

Medium Neutral Citation: Urban Fortune Global Ltd v Deicorp Projects (Partridge Ave) Pty Ltd (No 2) [2022] NSWSC 1703
Hearing dates: 9 December 2022
Date of orders: 13 December 2022
Decision date: 13 December 2022
Jurisdiction: Equity - Expedition List
Before: Parker J
Decision:
See [44]-[46]

Catchwords:
CONTRACTS – commercial contracts – repudiation – damages – where question reserved as to whether defendant’s failure to accept offer for sale of land amounts to repudiation of informal written agreement – where plaintiffs allege that defendant repudiated its obligation to agree the terms of a contract for the sale of land – where defendant denies its repudiation on the basis that plaintiffs did not validly nominate a “special purpose vehicle” or “Purchasing Entity” – where nomination of “special purpose vehicle” and “Purchasing Entity” anterior to defendant’s obligation to agree the terms of sale – whether plaintiffs had validly nominated special purpose vehicle and Purchasing Entity – whether defendant raised this defence in its pleadings – plaintiffs held not to have complied with terms of the contract – held that defendant’s obligation to make an offer did not arise

Legislation Cited:
Corporations Act 2001 (Cth), s 131

Cases Cited:
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Urban Fortune Global Ltd v Deicorp Projects (Partridge Ave) Pty Ltd [2022] NSWSC 1352

Category: Consequential orders
Parties: Urban Fortune Global Limited (First Plaintiff)
Polytec Australia One Pty Limited (Second Plaintiff)
Deicorp Projects (Partridge Ave) Pty Limited (Defendant)
Representation:
Counsel:
AJL Bannon SC/GW Stapleton (Plaintiffs)
ARR Vincent (Defendant)
Solicitors:
HFW Australia (Plaintiffs)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2021/229404
Publication restriction: Nil

Judgment

These proceedings were the subject of an expedited hearing before me in September. On 10 October, I delivered my judgment: Urban Fortune Global Ltd v Deicorp Projects (Partridge Ave) Pty Ltd [2022] NSWSC 1352. This judgment deals with the orders to be made to give effect to my earlier decision. It assumes familiarity with my October judgment, the paragraphs of which are referred to as “J1”.
The background to the proceedings is set out at J1 [1]-[12]. The chronology of key facts is outlined at J1 [13]-[45]. For present purposes, the relevant background and chronology may be summarised as follows.
The dispute between the parties concerns a group of properties held by the defendant (“Deicorp PA”) at Castle Hill. The holding consists of ten pieces of residential land, which collectively are subject to a development approval for demolition of the existing houses and construction of a 272 unit apartment building.
The dispute arises out of an agreement between Deicorp PA and the first plaintiff (“UFG”). That agreement took the form of a letter dated 23 April 2021 from UFG to Deicorp, which was countersigned on behalf of Deicorp and returned (strictly speaking, a copy was returned) to UFG on 26 April. There was a dispute before me about whether the countersignature on behalf of Deicorp was…

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

AGLC: Urban Fortune Global Ltd v Deicorp Projects (Partridge Ave) Pty Ltd (No 2) [2022] NSWSC 1703
Case: [2022] NSWSC 1703
Decision Date: 13 December 2022

CaseChat Overview and Summary

Urban Fortune Global Ltd brought an action against Deicorp Projects (Partridge Ave) Pty Ltd in the Supreme Court of Queensland. The dispute centred on an alleged repudiation of an informal written agreement for the sale of land. The plaintiffs claimed that the defendants had repudiated their obligation to agree on the terms of a contract for the sale of land. The defendants, in turn, argued that the plaintiffs had not validly nominated a "special purpose vehicle" or "Purchasing Entity" as required by the terms of the contract, and therefore, they could not be held to have repudiated the agreement.

The court was required to determine whether the plaintiffs had validly nominated a "special purpose vehicle" and "Purchasing Entity" as required by the contract before the defendants' obligation to make an offer arose. Additionally, the court had to consider whether the defendants had raised this defence in their pleadings and whether the plaintiffs had complied with the terms of the contract. The primary issue was whether the defendants' failure to accept the plaintiffs' offer for the sale of land amounted to a repudiation of the informal written agreement.

The court found that the plaintiffs had not complied with the terms of the contract by failing to validly nominate a "special purpose vehicle" and "Purchasing Entity" before the defendants' obligation to make an offer arose. Consequently, the court held that the defendants' obligation to make an offer did not arise. The court ruled in favour of the defendants, finding that there had been no repudiation of the agreement by the defendants. The plaintiffs' claim for damages was dismissed.

Orders