BP7 Pty Ltd v Gavancorp Pty Ltd [2021] NSWSC 265

Supreme Court New South Wales

Medium Neutral Citation: BP7 Pty Ltd v Gavancorp Pty Ltd [2021] NSWSC 265 Hearing dates: 11 March 2021 Date of orders: 22 March 2021 Decision date: 22 March 2021 Jurisdiction: Equity Before: Darke J Decision: Separate questions answered "Yes", favourably to the cross-claimants. Catchwords: STATUTORY INTERPRETATION – meaning of "option to purchase" and "option granted for the purchase" in Division 9 of Part 4 of Conveyancing Act 1919 (NSW) – whether "option to purchase" includes put options – held that "option to purchase" should be construed as an option in the nature of a call option that gives holder or grantee the right to purchase property – "option granted for the purchase" has no wider meaning – statutory expressions given ordinary and natural meanings LAND LAW – options – deeds of put and call option in respect of fourteen strata scheme lots – vendors granted call options to purchaser – purchaser granted put options to vendors – purchaser paid call option fee being 10% of the respective purchase prices – call option fee to be credited as deposit if any option is exercised – call options not exercised by purchaser – put options exercised by vendors – contracts for sale of land deemed to be entered into – purchaser subsequently rescinded contracts for sale relying upon statutory cooling off period – purchaser forfeits 0.25% of the respective purchase prices – whether purchaser is entitled to refund of call option fees less forfeited amount – where call option fees treated as deposits – held that the purchaser is entitled to refund of call option fees less 0.25% of the respective purchase prices – Conveyancing Act 1919 (NSW), s 66V Legislation Cited: Conveyancing (Sale of Land) Amendment Act 1990 (NSW) Conveyancing (Sale of Land) Regulation 2017 (NSW), cl 13 Conveyancing Act 1919 (NSW), ss 66S, 66T, 66U, 66V, 66ZB, 66ZC, 66ZD, 66ZE Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 C&P Syndicate Pty Ltd v Reddy (2013) 16 BPR 31,771; [2013] NSWSC 643 Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Dacco Pty Ltd v CV Crows Nest Fund Pty Ltd [2020] NSWSC 1550 Esso Australia Pty Ltd v Australian Worker's Union (2017) 263 CLR 551; [2017] HCA 54 Evolution Living Property Management Pty Ltd v CSP Australia Pty Ltd [2010] NSWSC 65 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; [2005] HCA 58 Category: Principal judgment Parties: BP7 Pty Ltd (Plaintiff) Gavancorp Pty Limited (First Defendant/First Cross Claimant) Robert Benjamin Besant (Second Defendant/Second Cross Claimant) Lisa Ann Haxell (Third Defendant/Third Cross Claimant) Simon Richard Powell (Fourth Defendant/Fourth Cross Claimant) Louise Ellen Elizabeth Powell (Fifth Defendant/Fifth Cross Claimant) Vicky Daniele (Sixth Defendant/Sixth Cross Claimant) Joy Rebecca White (Seventh Defendant/Seventh Cross Claimant) Stephen John Meredith (Eighth Defendant/Eighth Cross Claimant) Eileen Baldry (Ninth and Twelfth Defendant/Ninth Cross Claimant) Ellen Nitsa Charalambous (Tenth Defendant/Tenth Cross Claimant) Paul George Cavaco (Eleventh Defendant/Eleventh Cross Claimant) Louise Kapeleris (also known as Louis Kapeleris) (Thirteenth Defendant/Twelfth Cross Claimant) Athanasia Kapeleris (Fourteenth Defendant/Thirteenth Cross Claimant) Maged Labib Louca (Fifteenth Defendant/Fourteenth Cross Claimant) Mona Saad Louca (Sixteenth Defendant/Fifteenth Cross Claimant) Csaba Zoltan Fekete (Seventeenth Defendant/Sixteenth Cross Claimant) David Walter Diesendorf (Eighteenth Defendant/Seventeenth Cross Claimant) Jeffrey Edmond O'Brien and Danny Kenneth Simpson trading as Redmond Hale Simpson (First and Second Cross-Defendants) Representation: Counsel: Mr G Farland (Cross-Claimants) Mr A C Harding SC (First and Second Cross-Defendants)