ETO Pty Ltd v Idameneo (No 123) Pty Ltd [2004] NSWCA 368

ETO Pty Ltd v Idameneo (No 123) Pty Ltd [2004] NSWCA 368

Clause 13.9 was not enlivened because the sale was in part a taxable supply. The contract used unitary language, referred to one sale and one price, and stipulated payment of one-eleventh of the price rather than an apportioned amount. Construing the clause distributively would require radical rewriting. Accordingly, cl 13.9.1 applied only if the sale was not at all a taxable supply, which was not the case.

Jurisdiction
Australia
Judgment Date
05 November 2004
Procedural Posture
Appeal Concerning Construction of GST Provisions in a Contract for Sale of Land / Appeal From Supreme Court, Equity Division Decision of Young CJ in Eq; Appeal Dismissed
Outcome
Appeal dismissed with costs.
Legal Topics
['construction of Law Society Form Contract' 'goods and Services Tax' 'taxable Supply' 'input Taxed Residential Premises' 'apportionment of Gst' 'clause 13.9 Adjustment']
['vendor and Purchaser' 'contract Law' 'real Property' 'taxation'] ['construction of Law Society Form Contract' 'goods and Services Tax' 'taxable Supply' 'input Taxed Residential Premises' 'apportionment of Gst' 'clause 13.9 Adjustment']

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Procedural Posture

Appeal Concerning Construction of GST Provisions in a Contract for Sale of Land / Appeal From Supreme Court, Equity Division Decision of Young CJ in Eq; Appeal Dismissed

Legal Issues

  1. 1 ['Whether cl 13.9 of the contract required the vendor to pay the purchaser where the contract stated that the sale was a taxable supply but the sale was only partly a taxable supply.' 'Whether cl 13.9 should be construed distributively so that it applied to the non-taxable part of the sale with an apportioned GST adjustment.' 'Whether the vendor was obliged to pay one-eleventh of the whole purchase price or another amount to the purchaser under cl 13.9.']

Ratio Decidendi

Clause 13.9 was not enlivened because the sale was in part a taxable supply. The contract used unitary language, referred to one sale and one price, and stipulated payment of one-eleventh of the price rather than an apportioned amount. Construing the clause distributively would require radical rewriting. Accordingly, cl 13.9.1 applied only if the sale was not at all a taxable supply, which was not the case.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']