Kirkby v Turner [2009] NSWCA 131

Kirkby v Turner [2009] NSWCA 131

On the proper construction of the agreement, the relevant rezoning was rezoning to Rural Residential finalised within two years or within a validly negotiated extension. At the end of the two year period, rezoning had not been finalised and the likelihood of rezoning was not imminent. Any negotiation for an extension based on imminent rezoning would have been impossible or futile. Accordingly, rezoning was unsuccessful within clause (d), triggering the obligation to transfer the Company's interest in the Property to the Respondent, and the appeal failed.

Jurisdiction
Australia
Judgment Date
02 June 2009
Procedural Posture
Civil Appeal / Appeal From Supreme Court Equity Division Decision of Nicholas J
Outcome
Appeal dismissed with costs.
Legal Topics
['agreement to Negotiate' 'contract Construction' 'rezoning Condition' 'transfer of Beneficial Interest in Property' 'objective Intention of Contracting Parties']
['contracts' 'property Law' 'equity'] ['agreement to Negotiate' 'contract Construction' 'rezoning Condition' 'transfer of Beneficial Interest in Property' 'objective Intention of Contracting Parties']

Case Brief

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Procedural Posture

Civil Appeal / Appeal From Supreme Court Equity Division Decision of Nicholas J

Legal Issues

  1. 1 ['Whether the final sentence of clause (b) required the parties to negotiate or agree an extension of the two year rezoning period despite rezoning not being imminent.' 'Whether the failure to achieve Rural Residential rezoning within the contractual timeframe meant that rezoning was unsuccessful within clause (d).' "Whether clause (d) was triggered so as to require transfer of the Company's interest in the Property to the Respondent."]

Ratio Decidendi

On the proper construction of the agreement, the relevant rezoning was rezoning to Rural Residential finalised within two years or within a validly negotiated extension. At the end of the two year period, rezoning had not been finalised and the likelihood of rezoning was not imminent. Any negotiation for an extension based on imminent rezoning would have been impossible or futile. Accordingly, rezoning was unsuccessful within clause (d), triggering the obligation to transfer the Company's interest in the Property to the Respondent, and the appeal failed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']