Dee Why Grand Shopping Centre Pty Limited v Dee Why Projects Pty Limited [2011] NSWSC 1149

Dee Why Grand Shopping Centre Pty Limited v Dee Why Projects Pty Limited [2011] NSWSC 1149

Clause 66 of the building contract should be construed to require the contractor to provide a tripartite agreement to the purchaser for defect rectification, even if settlement occurred after practical completion, as this interpretation gives effect to the clear contractual purpose. Clause 66(b) is not void for uncertainty or incompleteness; its essential terms are sufficiently clear.

Jurisdiction
Australia
Judgment Date
27 September 2011
Procedural Posture
Principal Judgment / Judgment After Hearing
Outcome
Specific performance ordered as against the contractor and the principal to execute the side agreement; principal given leave to file the necessary cross claim; costs reserved.
Legal Topics
['construction of Contracts' 'contractual Interpretation' 'specific Performance' 'certainty and Completeness of Agreements']
['contracts' 'equity'] ['construction of Contracts' 'contractual Interpretation' 'specific Performance' 'certainty and Completeness of Agreements']

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Procedural Posture

Principal Judgment / Judgment After Hearing

Legal Issues

  1. 1 ['Whether clause 66 of the building contract entitles the purchaser to a tripartite side agreement compelling the contractor to perform defect rectification obligations' "Whether the meaning of 'sale' in clause 66 depends on the occurrence of settlement before or after practical completion" 'Whether clause 66(b) is void for uncertainty and/or incompleteness']

Ratio Decidendi

Clause 66 of the building contract should be construed to require the contractor to provide a tripartite agreement to the purchaser for defect rectification, even if settlement occurred after practical completion, as this interpretation gives effect to the clear contractual purpose. Clause 66(b) is not void for uncertainty or incompleteness; its essential terms are sufficiently clear.

Court Disposition

Specific performance ordered as against the contractor and the principal to execute the side agreement; principal given leave to file the necessary cross claim; costs reserved.

Orders

  • ['Order for specific performance requiring the contractor to execute and return the side agreement in accordance with clause 66(b) of the building contract, subject to the principal filing a cross claim.' 'Order for specific performance of clause 52.2 of the contract for sale of land in favour of the purchaser.'...