Black & Ors v Australand Holdings Pty Ltd [No 2] [2000] NSWCA 324

Black & Ors v Australand Holdings Pty Ltd [No 2] [2000] NSWCA 324

Leave to reopen the appeal was refused because the appellants had not nominated units which they intended to purchase within the seven-day period required by Special Condition 24(d), so no obligation arose under Special Condition 24(f) and no breach by the respondent could found damages. Any common-ground concession at trial went no further than the respondent not taking the Special Condition 24(d) point and did not create an estoppel or binding waiver; no evidence could realistically have overcome the expiry of the seven-day right. The Court had power to consider the point, the appellants were later given full written opportunity to argue it, and the point was correct. The alleged...

Jurisdiction
Australia
Judgment Date
23 November 2000
Procedural Posture
Application to Reopen Appeal in Contract and Trade Practices Act Proceedings / New South Wales Court of Appeal; Decided on Written Submissions After Appeal Dismissed and Before Orders Entered
Outcome
Application to reopen the appeal dismissed with costs.
Legal Topics
['application to Reopen Appeal' 'right of First Refusal' 'option Agreement' 'nomination Under Contract' 'estoppel and Waiver' 'fresh Evidence and Defective Discovery' 'trade Practices Act S 52' 'costs']
['contract Law' 'equity' 'trade Practices' 'civil Procedure' 'appellate Procedure'] ['application to Reopen Appeal' 'right of First Refusal' 'option Agreement' 'nomination Under Contract' 'estoppel and Waiver' 'fresh Evidence and Defective Discovery' 'trade Practices Act S 52' 'costs']

Case Brief

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Procedural Posture

Application to Reopen Appeal in Contract and Trade Practices Act Proceedings / New South Wales Court of Appeal; Decided on Written Submissions After Appeal Dismissed and Before Orders Entered

Legal Issues

  1. 1 ['Whether the appeal should be reopened because the Court of Appeal decided the contract issue on a basis said not to have been argued and said to be contrary to common ground at trial and on appeal.' "Whether the appellants' letters effectively nominated units for purchase under Special Condition 24(d) so as to oblige the respondent to serve contracts under Special Condition 24(f)." "Whether the respondent was estopped from, or had waived the right to, rely on the appellants' non-compliance with Special Condition 24(d)." 'Whether allegedly defective discovery and additional evidence warranted reopening the appeal or a new trial in relation to the option, unit 33, or Trade Practices Act claims.' 'Whether the earlier costs order on the appeal should be set aside or varied.']

Ratio Decidendi

Leave to reopen the appeal was refused because the appellants had not nominated units which they intended to purchase within the seven-day period required by Special Condition 24(d), so no obligation arose under Special Condition 24(f) and no breach by the respondent could found damages. Any common-ground concession at trial went no further than the respondent not taking the Special Condition 24(d) point and did not create an estoppel or binding waiver; no evidence could realistically have overcome the expiry of the seven-day right. The Court had power to consider the point, the appellants were later given full written opportunity to argue it, and the point was correct. The alleged...

Court Disposition

Application to reopen the appeal dismissed with costs.

Orders

  • ['Application to reopen the appeal dismissed with costs.']