Jana Pty Ltd atf Azizi Family Trust & Anthony Azizi v Ezistripdemo Pty Ltd & Sam Sharan [2017] NSWSC 1135

Jana Pty Ltd atf Azizi Family Trust & Anthony Azizi v Ezistripdemo Pty Ltd & Sam Sharan [2017] NSWSC 1135

The Nomination Deed, objectively construed, was not conditional upon Rezoning in the manner contended for by the Plaintiffs. The definition of Completion Date, the obligation to pay the third tranche on Completion Date, clause 4.3, clause 9, and the limited operation of clause 10 meant that where 16 weeks after Gateway Approval was the earliest Completion Date event, the parties were required to perform their Completion Date obligations then. Clause 10 operated only where Completion Date had not occurred by Final Exercise Time. Alternatively, the evidence provided clear and convincing proof that the parties shared a common intention that Completion Date obligations be conditional upon...

Jurisdiction
Australia
Judgment Date
29 August 2017
Procedural Posture
Equity Proceedings Concerning Construction and Effect of a Nomination Deed and Cross Claim for Rectification and Conventional Estoppel / Principal Judgment After Hearing; Parties Invited to Prepare Short Minutes and Be Heard on Costs If Necessary
Outcome
The Court accepted the Defendants' construction of the Nomination Deed, found that the Deed was not conditional upon Rezoning in the Plaintiffs' sense, indicated rectification would alternatively have been granted, and rejected the conventional estoppel claim.
Legal Topics
['contractual Construction' 'rectification' 'common Intention' 'estoppel by Convention' 'commercial Contracts' 'call Options' 'rezoning' 'gateway Approval']
['contracts' 'equity'] ['contractual Construction' 'rectification' 'common Intention' 'estoppel by Convention' 'commercial Contracts' 'call Options' 'rezoning' 'gateway Approval']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Construction and Effect of a Nomination Deed and Cross Claim for Rectification and Conventional Estoppel / Principal Judgment After Hearing; Parties Invited to Prepare Short Minutes and Be Heard on Costs If Necessary

Legal Issues

  1. 1 ['Whether, on the proper construction of the Nomination Deed, the steps required on the Completion Date, including payment of the third tranche of the Nomination Fee, were conditional upon Rezoning of the properties or were required 16 weeks after Gateway Approval.' 'Whether the Nomination Deed should be rectified to reflect a common intention that the steps required on Completion Date were conditional upon Gateway Approval rather than Rezoning.' 'Whether Jana was estopped by convention from terminating the Nomination Deed or refusing to pay the third tranche on the basis that Rezoning had not occurred.']

Ratio Decidendi

The Nomination Deed, objectively construed, was not conditional upon Rezoning in the manner contended for by the Plaintiffs. The definition of Completion Date, the obligation to pay the third tranche on Completion Date, clause 4.3, clause 9, and the limited operation of clause 10 meant that where 16 weeks after Gateway Approval was the earliest Completion Date event, the parties were required to perform their Completion Date obligations then. Clause 10 operated only where Completion Date had not occurred by Final Exercise Time. Alternatively, the evidence provided clear and convincing proof that the parties shared a common intention that Completion Date obligations be conditional upon...

Court Disposition

The Court accepted the Defendants' construction of the Nomination Deed, found that the Deed was not conditional upon Rezoning in the Plaintiffs' sense, indicated rectification would alternatively have been granted, and rejected the conventional estoppel claim.

Orders

  • ['The parties were invited to prepare short minutes.' 'The parties were invited, if necessary, to be heard on costs.']