Angus Developments Pty Limited v Kim [2017] NSWSC 584

Angus Developments Pty Limited v Kim [2017] NSWSC 584

On the language, syntax and commercial purpose of the development agreement, Clause 5.1 was only a statement of general object and Clauses 8.1 to 8.4 contained no express condition that Development Consent be obtained before sale. Clause 8.1 permitted the Developer to conduct the marketing and sale process to conclusion at any time, including before Development Consent, and the defendants' contrary construction was commercially inconvenient and unsupported by the operative clauses. Clauses 8.3 and 8.4 were therefore not subject to a condition precedent that Development Consent be obtained.

Jurisdiction
Australia
Judgment Date
19 May 2017
Procedural Posture
Contract Construction Proceedings Concerning a Development Agreement / Hearing of a Separate Question
Outcome
Separate question answered in favour of the plaintiff; Clauses 8.3 and 8.4 of the agreement are not subject to a condition precedent that the plaintiff obtain Development Consent as defined in the agreement.
Legal Topics
['construction of Written Agreement' 'development Agreement' 'condition Precedent' 'relevance of Prior Non Binding Memorandum of Understanding' 'commercial Construction of Contracts']
['contract Law'] ['construction of Written Agreement' 'development Agreement' 'condition Precedent' 'relevance of Prior Non Binding Memorandum of Understanding' 'commercial Construction of Contracts']

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Procedural Posture

Contract Construction Proceedings Concerning a Development Agreement / Hearing of a Separate Question

Legal Issues

  1. 1 ['Whether Clauses 8.3 and 8.4 of the development agreement were subject to a condition precedent that the plaintiff obtain Development Consent before the defendants were obliged to sell their parcel of land.' 'Whether the prior non-binding memorandum of understanding affected the construction of the development agreement.' 'Whether Clause 5.1, describing the general object of the Project, required a sale only after Development Consent had been obtained.']

Ratio Decidendi

On the language, syntax and commercial purpose of the development agreement, Clause 5.1 was only a statement of general object and Clauses 8.1 to 8.4 contained no express condition that Development Consent be obtained before sale. Clause 8.1 permitted the Developer to conduct the marketing and sale process to conclusion at any time, including before Development Consent, and the defendants' contrary construction was commercially inconvenient and unsupported by the operative clauses. Clauses 8.3 and 8.4 were therefore not subject to a condition precedent that Development Consent be obtained.

Court Disposition

Separate question answered in favour of the plaintiff; Clauses 8.3 and 8.4 of the agreement are not subject to a condition precedent that the plaintiff obtain Development Consent as defined in the agreement.

Orders

  • ["The defendants pay the plaintiff's costs of the separate hearing." 'The plaintiff and the defendants undertake mediation pursuant to Clause 15 of the agreement.']