Morgan & Banks Developments Pty Limited v Kenoss Pty Limited [2010] NSWSC 1476

Morgan & Banks Developments Pty Limited v Kenoss Pty Limited [2010] NSWSC 1476

On the proper businesslike construction of the Development Agreement, Kenoss' opportunity to develop the lots ended on expiry of the nine-month period and cl 13.8(b) did not preserve a right to remain on the property and continue development. The three lots not developed or sold by then therefore belonged to the joint venture. However, for the six lots developed and sold by exchange of contracts within that period, Kenoss had done the work required of it and the agreement did not require the proceeds to be forfeited merely because settlement occurred after termination; those proceeds were to be applied under cl 8 of the Development Agreement. The March correspondence did not amount to an...

Jurisdiction
Australia
Judgment Date
15 December 2010
Procedural Posture
Equity Division Contractual Construction Dispute Concerning a Joint Venture Agreement and Development Agreement / Principal Judgment After Hearing; Matter Stood Over for Orders and Costs
Outcome
Kenoss Pty Limited was held entitled to have the proceeds of sale of the six lots held in the O'Connor Harris account applied under cl 8 of the Development Agreement, with due allowance for GST repayable to Canberra Land Developments Pty Limited. The remaining three lots were held to be property of the joint...
Legal Topics
['construction and Interpretation of Contracts' 'termination of Development Agreement' 'entitlement to Proceeds of Sale' 'specific Performance of Alleged Agreement' 'goods and Services Tax Allowance']
['contracts' 'equity' 'joint Ventures'] ['construction and Interpretation of Contracts' 'termination of Development Agreement' 'entitlement to Proceeds of Sale' 'specific Performance of Alleged Agreement' 'goods and Services Tax Allowance']

Case Brief

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Procedural Posture

Equity Division Contractual Construction Dispute Concerning a Joint Venture Agreement and Development Agreement / Principal Judgment After Hearing; Matter Stood Over for Orders and Costs

Legal Issues

  1. 1 ['Whether Kenoss Pty Limited or the joint venture was entitled to the proceeds of sale of six lots for which contracts were exchanged within the nine-month period but completed after termination of the Development Agreement.' 'Whether the remaining three undeveloped lots were the property of Kenoss Pty Limited or the joint venture after expiry of the nine-month period.' "Whether an exchange of letters dated 15 and 19 March 2010 constituted an agreement giving Kenoss Pty Limited the full beneficial interest in funds held by O'Connor Harris and warranted specific performance." "Whether allowance should be made for GST paid by Canberra Land Developments Pty Limited and not deducted from Kenoss Pty Limited's account."]

Ratio Decidendi

On the proper businesslike construction of the Development Agreement, Kenoss' opportunity to develop the lots ended on expiry of the nine-month period and cl 13.8(b) did not preserve a right to remain on the property and continue development. The three lots not developed or sold by then therefore belonged to the joint venture. However, for the six lots developed and sold by exchange of contracts within that period, Kenoss had done the work required of it and the agreement did not require the proceeds to be forfeited merely because settlement occurred after termination; those proceeds were to be applied under cl 8 of the Development Agreement. The March correspondence did not amount to an...

Court Disposition

Kenoss Pty Limited was held entitled to have the proceeds of sale of the six lots held in the O'Connor Harris account applied under cl 8 of the Development Agreement, with due allowance for GST repayable to Canberra Land Developments Pty Limited. The remaining three lots were held to be property of the joint...

Orders

  • ["Held that the first defendant is entitled to have the proceeds of sale of the six lots held in the O'Connor Harris account applied in the manner specified in cl 8 of the Development Agreement, with due allowance for GST repayable to the second defendant." 'Held that the remaining three lots are the property of the...