Nergl Developments Pty Ltd v Vella [2021] NSWCA 131

Nergl Developments Pty Ltd v Vella [2021] NSWCA 131

The Court held that the heads of agreement required only the execution of the Deed of Settlement and Release as per clauses 1 and 2, with other steps reflected in separate documents to give effect to the settlement. The easement under the heads of agreement was defined by reference to the attached plan, development consent, and construction certificate as 16 metres wide, with allowance for kerb, gutter, and footpath to be within that width. No temporary construction easement was implied, and adjustments at the intersection were limited to the splay already conceded. The costs orders should be varied to clarify they relate to proceedings in the Equity Division from 12 December 2018 to 30...

Jurisdiction
Australia
Judgment Date
01 July 2021
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
['construction of Contracts' 'specific Performance' 'easement' 'implied Terms' 'costs Orders']
['contracts' 'property Law' 'civil Procedure'] ['construction of Contracts' 'specific Performance' 'easement' 'implied Terms' 'costs Orders']

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ['Proper construction of heads of agreement following mediation' 'Scope of Deed of Settlement and Release' 'Width of easement as per agreement' 'Whether temporary construction easements to be implied' 'Configuration of easement at intersection for roundabout' 'Appropriate framing of costs orders']

Ratio Decidendi

The Court held that the heads of agreement required only the execution of the Deed of Settlement and Release as per clauses 1 and 2, with other steps reflected in separate documents to give effect to the settlement. The easement under the heads of agreement was defined by reference to the attached plan, development consent, and construction certificate as 16 metres wide, with allowance for kerb, gutter, and footpath to be within that width. No temporary construction easement was implied, and adjustments at the intersection were limited to the splay already conceded. The costs orders should be varied to clarify they relate to proceedings in the Equity Division from 12 December 2018 to 30...

Court Disposition

Appeal dismissed

Orders

  • ['Kindelon Pty Ltd identified as second appellant' 'Leave granted to appellants to file amended notice of appeal within 7 days' 'Leave granted to appeal from orders made 9 June 2021 regarding costs' "Set aside orders made 9 June 2021 and substitute: (a) Nergl and Kindelon jointly and severally liable to pay 80% of...