Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWCA 282
The judgment found, on the totality of parties' conduct and correspondence, that there was an effective novation by tripartite agreement: Park Cho, Mr Zhang, and Fortune agreed that Fortune would become the purchaser and Mr Zhang would be released. This conclusion was drawn from evidence of both parties' intention and mutual dealing, not merely formal amendments. The right of nomination under the contract was not exercised in accordance with the contract's procedural requirements, making the argument for mere nomination untenable. Accordingly, the finding that there was a novation was upheld.
- Parties
- First Appellant: Fu Tian Fortune Pty Ltd; Second Appellant: De Fu Zhang; Respondent: Park Cho Pty Ltd
- Jurisdiction
- Australia
- Judgment Date
- 23 November 2018
- Procedural Posture
- Appeal / Judgment of Court of Appeal; Appeal From NSW Supreme Court Equity Division
- Outcome
- Appeal dismissed
- Legal Topics
- Conveyancing, Novation, Contract Formation, Sale of Land, Nomination of Purchaser
Case Brief
Summary, issues, holding and outcome
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Parties
Fu Tian Fortune Pty Ltd
First Appellant
De Fu Zhang
Second Appellant
Park Cho Pty Ltd
Respondent
Procedural Posture
Appeal / Judgment of Court of Appeal; Appeal From NSW Supreme Court Equity Division
Legal Issues
- 1 Whether the contract for sale was novated so that the second appellant replaced the first appellant as purchaser
- 2 Whether the second appellant merely exercised a right to nominate another transferee
Ratio Decidendi
The judgment found, on the totality of parties' conduct and correspondence, that there was an effective novation by tripartite agreement: Park Cho, Mr Zhang, and Fortune agreed that Fortune would become the purchaser and Mr Zhang would be released. This conclusion was drawn from evidence of both parties' intention and mutual dealing, not merely formal amendments. The right of nomination under the contract was not exercised in accordance with the contract's procedural requirements, making the argument for mere nomination untenable. Accordingly, the finding that there was a novation was upheld.
Court Disposition
Appeal dismissed
Orders
- The appeal is dismissed.
- The appellants pay the respondent's costs of the appeal.
Full Case Text
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