GPT RE Ltd v Lend Lease Real Estate Investments Ltd & 1 Or [2005] NSWSC 964

GPT RE Ltd v Lend Lease Real Estate Investments Ltd & 1 Or [2005] NSWSC 964

GPT RE Ltd, by entering into conditional put and call options subject to Lend Lease not exercising pre-emptive rights, did not 'deal with' its interest in the property in breach of clause 9(a) of the Joint Ownership Agreement. Clause 9(c) is facultative, not promissory: an owner is not in breach by wishing to deal with its interest unless and until it takes steps to effect a prohibited disposal. No Event of Default occurred, and Lend Lease is not entitled to compel valuation or acquisition of GPT RE's interest.

Parties
Plaintiff: GPT RE Ltd; First Defendant: Lend Lease Real Estate Investments Ltd; Second Defendant: Lend Lease Funds Management Ltd; Related Party (optionee): Westfield Management Ltd
Jurisdiction
Australia
Judgment Date
27 September 2005
Procedural Posture
Civil (equity/commercial) / Judgment After Hearing
Outcome
Declarations granted in favour of Plaintiff; Defendants restrained from instigating or coordinating valuation per JOA to the date of hearing;
Legal Topics
Interpretation of Pre Emptive Rights, Property Co Ownership, Joint Ownership Agreements, Conditional Options, Event of Default, Remedies for Breach of Contract
Contract Law Property Law Equity Corporations Law Interpretation of Pre Emptive Rights Property Co Ownership Joint Ownership Agreements Conditional Options +2 more

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Parties

GPT RE Ltd

Plaintiff

Lend Lease Real Estate Investments Ltd

First Defendant

Lend Lease Funds Management Ltd

Second Defendant

Westfield Management Ltd

Related Party (optionee)

Procedural Posture

Civil (equity/commercial) / Judgment After Hearing

Legal Issues

  1. 1 Whether the grant of put and call options constituted a 'dealing' with an interest in property under the Joint Ownership Agreement;
  2. 2 Whether entering conditional agreements, subject to pre-emptive rights not being exercised, breached clause 9(a) of the JOA;
  3. 3 Whether a party wishing to deal with its interest was obligated to serve a Transfer Notice under clause 9(c) of the JOA;

Ratio Decidendi

GPT RE Ltd, by entering into conditional put and call options subject to Lend Lease not exercising pre-emptive rights, did not 'deal with' its interest in the property in breach of clause 9(a) of the Joint Ownership Agreement. Clause 9(c) is facultative, not promissory: an owner is not in breach by wishing to deal with its interest unless and until it takes steps to effect a prohibited disposal. No Event of Default occurred, and Lend Lease is not entitled to compel valuation or acquisition of GPT RE's interest.

Court Disposition

Declarations granted in favour of Plaintiff; Defendants restrained from instigating or coordinating valuation per JOA to the date of hearing;

Orders

  • Declare plaintiff is not a 'Selling Owner' under clause 9(c) of the JOA;
  • Declare first defendant not entitled to invoke valuation process under clause 8 of the JOA;