REBENTA PTY LTD v WISE [2009] NSWCA 212

REBENTA PTY LTD v WISE [2009] NSWCA 212

The appeal failed because Rebenta did not establish that the respondent's negligence caused compensable loss. On the proper construction of cl 5.4, development consent had been granted by Council on 27 February 1996 and written notification was not required by 28 February 1996. If that construction were wrong, Rebenta was estopped by convention from asserting non-compliance where the parties had acted on the basis that Council approval by 28 February was sufficient. As to building consent, the evidence showed a common intention that cl 5.4 should not require building consent by 28 February 1996, so Ocean View would probably have obtained rectification deleting those words. Rebenta...

Jurisdiction
Australia
Judgment Date
24 July 2009
Procedural Posture
Appeal in Solicitor Negligence Proceedings Concerning Alleged Loss of Opportunity to Terminate a Project Management Agreement / Appeal to the New South Wales Court of Appeal From Judgment of James J in the Supreme Court of New South Wales, Common Law Division
Outcome
Appeal dismissed with costs
Legal Topics
['construction and Interpretation of Agreement' 'development Consent and Building Consent Conditions' 'estoppel by Convention' 'rectification of Contract' 'loss of Opportunity' 'whether Appellate Court Should Resolve Non Determinative Issues']
['contracts' 'estoppel' 'equity' 'professional Negligence' 'civil Procedure'] ['construction and Interpretation of Agreement' 'development Consent and Building Consent Conditions' 'estoppel by Convention' 'rectification of Contract' 'loss of Opportunity' 'whether Appellate Court Should Resolve Non Determinative Issues']

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Procedural Posture

Appeal in Solicitor Negligence Proceedings Concerning Alleged Loss of Opportunity to Terminate a Project Management Agreement / Appeal to the New South Wales Court of Appeal From Judgment of James J in the Supreme Court of New South Wales, Common Law Division

Legal Issues

  1. 1 ['Whether the grant of development consent by Waverley Council before 28 February 1996 satisfied cl 5.4 despite written notification not being given until after that date' 'Whether Rebenta was estopped by convention from relying on absence of written notification of development consent as a basis for termination' 'Whether Ocean View could have obtained rectification of the project management agreement to delete the requirement that building consent be obtained by 28 February 1996' "Whether the respondent solicitor's negligence caused Rebenta any loss"]

Ratio Decidendi

The appeal failed because Rebenta did not establish that the respondent's negligence caused compensable loss. On the proper construction of cl 5.4, development consent had been granted by Council on 27 February 1996 and written notification was not required by 28 February 1996. If that construction were wrong, Rebenta was estopped by convention from asserting non-compliance where the parties had acted on the basis that Council approval by 28 February was sufficient. As to building consent, the evidence showed a common intention that cl 5.4 should not require building consent by 28 February 1996, so Ocean View would probably have obtained rectification deleting those words. Rebenta...

Court Disposition

Appeal dismissed with costs

Orders

  • ['Appeal dismissed with costs']