CIC Projects Pty Ltd v Eyre Kingston Pty Ltd [2020] NSWSC 1658

CIC Projects Pty Ltd v Eyre Kingston Pty Ltd [2020] NSWSC 1658

Clause 4.2(e) contained no words making partition of the Land dependent upon payment of the Expenses or requiring partition to occur no later than contemporaneously with payment. The word 'however' did not address timing, and absent a real constructional choice, contextual matters and alleged commercial inconvenience could not create interdependency or contemporaneity. The Co-owners Agreement, read with the Development Agreement and Deed of Agreement, did not require the Expenses to be paid earlier than completion of the Project, and the evidence did not establish that the Project had been completed. Accordingly, CIC failed on its construction argument and its allocation relief was...

Jurisdiction
Australia
Judgment Date
20 November 2020
Procedural Posture
Construction Suit in the Equity Technology and Construction List Concerning Construction of a Co Owners Agreement / Final Hearing After Interim Injunction
Outcome
Summons dismissed; declaration made in favour of DTM; injunction dissolved; provisional costs order against the plaintiff.
Legal Topics
['contract Construction' 'co Owners Agreement' 'partition of Land' 'specific Performance' 'interim Injunction' 'derivative Proceedings Standing' 'construction Project Expenses']
['contract Law' 'equity' 'corporations'] ['contract Construction' 'co Owners Agreement' 'partition of Land' 'specific Performance' 'interim Injunction' 'derivative Proceedings Standing' 'construction Project Expenses']

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Procedural Posture

Construction Suit in the Equity Technology and Construction List Concerning Construction of a Co Owners Agreement / Final Hearing After Interim Injunction

Legal Issues

  1. 1 ['Whether clauses 4.2(d) and 4.2(e) of the Co-owners Agreement made partition of the Land conditional upon or interdependent with DTM paying Expenses incurred in carrying out the Commercial and Retail Works.' "Whether the Court should order Griffin Q to procure its nominated directors on EK's board to determine or refer to the Quantity Surveyor allocations of Expenses under the Deed of Agreement." 'Whether DTM should obtain specific performance requiring partition to be effected.']

Ratio Decidendi

Clause 4.2(e) contained no words making partition of the Land dependent upon payment of the Expenses or requiring partition to occur no later than contemporaneously with payment. The word 'however' did not address timing, and absent a real constructional choice, contextual matters and alleged commercial inconvenience could not create interdependency or contemporaneity. The Co-owners Agreement, read with the Development Agreement and Deed of Agreement, did not require the Expenses to be paid earlier than completion of the Project, and the evidence did not establish that the Project had been completed. Accordingly, CIC failed on its construction argument and its allocation relief was...

Court Disposition

Summons dismissed; declaration made in favour of DTM; injunction dissolved; provisional costs order against the plaintiff.

Orders

  • ['Summons dismissed.' 'Declaration that on the proper construction of clauses 4.2(d) and 4.2(e) of the Co-owners Agreement between Eyre Kingston Pty Ltd and DTM Investments (ACT) Pty Ltd dated 18 June 2015, the obligation to partition the Land is neither contingent upon nor interdependent with any obligation on DTM...