Nergl Developments Pty Ltd v Vella [2021] NSWCA 131

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nergl Developments Pty Ltd v Vella [2021] NSWCA 131 Hearing dates: 17 June 2021 Date of orders: 1 July 2021 Decision date: 01 July 2021 Before: Basten JA at [1]; Meagher JA at [74]; Leeming JA at [75] Decision: (1) Direct that Kindelon Pty Ltd be identified as the second appellant. (2) Grant leave to the appellants to file the amended notice of appeal within 7 days. (3) Grant leave to the appellants to appeal from orders (1) and (2) made on 9 June 2021 with respect to the costs of the trial. (4) Set aside orders (1) and (2) made on 9 June 2021 and in their place order that: (a) Nergl and Kindelon are jointly and severally liable to pay to the plaintiff 80% of her costs of and relating to the proceedings in the Equity Division from 12 December 2018, up to and including 30 October 2019; and (b) Nergl is to pay 80% of the plaintiff's costs of the proceedings in the Equity Division after 30 October 2019. (5) Otherwise dismiss the appeal. (6) Order Nergl to pay Ms Vella's costs in this Court. Catchwords: CONTRACTS – construction – agreement resulting from mediation of dispute – heads of agreement – Masters v Cameron class 2 contract – proposed deed of release – parties to enter into deed to terminate earlier agreement – whether deed to include all terms of settlement CONTRACTS – construction – agreement to grant easement – whether ambiguity – whether specified width included kerb, gutter and footpath CONTRACTS – construction – implied terms – term to be necessary to give business efficacy – whether temporary easement for construction to be implied – whether expansion of easement to permit construction of roundabout to be implied Legislation Cited: Conveyancing Act 1919 (NSW), s 88B Environmental Planning and Assessment Act, ss 80, 95 Uniform Civil Procedure Rules 2005 (NSW), r 36.17 Cases Cited: BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266; [1977] HCA ? (PC) Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 Category: Principal judgment Parties: Nergl Developments Pty Ltd (First Appellant) Kindelon Pty Ltd (Second Appellant)