Carbone as Trustee for the S & N Carbone Family Trust v Mills [2019] NSWCA 15

Carbone as Trustee for the S & N Carbone Family Trust v Mills [2019] NSWCA 15

The appellants' mistaken belief about the lapse date of the option was not induced by any representation or conduct of the respondent, but was self-induced. The evidence did not support the existence of a mutual assumption or representation upon which to base estoppel. Furthermore, arguments based on breach of implied covenants or new bases for estoppel were not pleaded or raised at first instance and could not be advanced for the first time on appeal. Thus, the respondent was entitled to rely on the lapse date and on the non-payment of outstanding interest, and the purported exercise of the option by the appellants was ineffective.

Jurisdiction
Australia
Judgment Date
15 February 2019
Procedural Posture
Equity Appeal / Leave to Appeal and Substantive Appeal From Equity Division, Supreme Court of NSW
Outcome
Leave to appeal granted; appeal dismissed
Legal Topics
['estoppel' 'option to Purchase Land' 'construction of Contracts' 'pleading and Raising New Arguments on Appeal']
['equity'] ['estoppel' 'option to Purchase Land' 'construction of Contracts' 'pleading and Raising New Arguments on Appeal']

Case Brief

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Procedural Posture

Equity Appeal / Leave to Appeal and Substantive Appeal From Equity Division, Supreme Court of NSW

Legal Issues

  1. 1 ['Whether the respondent was estopped from relying on the terms of the Option Agreement (specifically the lapse date and non-payment of interest)' "Whether the appellants' misunderstanding as to the option lapse date was induced by the respondent" 'Whether failure to pay outstanding interest precluded exercise of the option']

Ratio Decidendi

The appellants' mistaken belief about the lapse date of the option was not induced by any representation or conduct of the respondent, but was self-induced. The evidence did not support the existence of a mutual assumption or representation upon which to base estoppel. Furthermore, arguments based on breach of implied covenants or new bases for estoppel were not pleaded or raised at first instance and could not be advanced for the first time on appeal. Thus, the respondent was entitled to rely on the lapse date and on the non-payment of outstanding interest, and the purported exercise of the option by the appellants was ineffective.

Court Disposition

Leave to appeal granted; appeal dismissed

Orders

  • ['Applicants granted leave to appeal' 'Appeal dismissed' "Applicants pay the respondent's costs of the appeal, including the application for leave to appeal"]