Boyded Industries Pty Ltd v Gateway Parramatta Two Pty Ltd [2020] NSWSC 1368

Supreme Court New South Wales

Medium Neutral Citation: Boyded Industries Pty Ltd v Gateway Parramatta Two Pty Ltd [2020] NSWSC 1368 Hearing dates: 23 September 2020 Date of orders: 8 October 2020 Decision date: 08 October 2020 Jurisdiction: Equity Before: Darke J Decision: Amended Statement of Claim is dismissed with costs. Catchwords: EQUITY – equitable remedies – relief against penalties – parties enter into Deed of Call Option with defendants as grantor and plaintiff as grantee – plaintiff prohibited by clause 8(a) from causing any caveat to be registered on title of property – clause 8(b) records acknowledgement by parties that cl 8(a) is an essential term and that breach of cl 8(a) entitles defendants to immediately terminate Deed – plaintiff lodges caveat on title of property – defendants terminate deed – plaintiff claims cl 8(b) is unenforceable as a penalty – held that cl 8(b) is not collateral or accessory to cl 8(a) – held that even if cl 8(b) was a secondary stipulation it should not be characterised as a penalty having regard to defendants' interests in the performance of obligation under cl 8(a) EQUITY – equitable remedies – relief against forfeiture – contract terminated for plaintiff's breach of an essential term – plaintiff claims relief against forfeiture where defendants have suffered no loss and plaintiff would lose valuable rights if termination allowed to stand – whether relief against forfeiture available – whether plaintiff had proprietary interest in land – conduct of defendants not shown to have contributed to breach – plaintiff's breach held to be wilful – plaintiff's claim for relief against forfeiture fails CONTRACTS – waiver – election – whether defendants waived right to terminate for plaintiff's breach – whether defendants elected to affirm contract – held no waiver by delay, no implied waiver and no waiver in accordance with requirements of contract – plaintiff fails to establish affirmation – defendants' conduct not inconsistent with the exercise of the right to terminate for breach Cases Cited: Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30 Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd (2017) 18 BPR 36,683; [2017] NSWCA 99 Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Company Ltd [1915] AC 79 Forder v Cemcorp Pty Ltd (2001) 51 NSWLR 486; [2001] NSWSC 281 Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd (2008) 257 ALR 292 Kay v Playup Australia Pty Ltd (2020) 19 BPR 40,037; [2020] NSWCA 33 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2017] HCA 61 Legione v Hateley (1983) 152 CLR 406 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525 Ringrow Pty Ltd v BP Australia Pty Ltd (2004) 209 ALR 32; [2004] FCAFC 206 Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656; [2005] HCA 71 Romanos v Pentagold Investments Pty Ltd (2003) 217 CLR 367; [2003] HCA 58 Sargent v ASL Developments Ltd (1974) 131 CLR 634 Shiloh Spinners Ltd v Harding [1973] AC 691 Stern v McArthur (1988) 165 CLR 489 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 Tramways Advertising Pty Ltd v Luna Park (NSW) Pty Ltd (1938) 38 SR (NSW) 632 Zucker v Straightlace Pty Ltd (1986) 11 NSWLR 87 Category: Principal judgment Parties: Boyded Industries Pty Ltd (Plaintiff) Gateway Parramatta Two Pty Ltd (First Defendant) Gateway Parramatta Two Commercial Pty Ltd (Second Defendant) Representation: Counsel: Mr G Farland with Ms C Roberts (Plaintiff) Mr K Andronos SC with Mr S Keizer(Defendants)