123 259 932 Pty Ltd v Cessnock City Council (No 2) [2021] NSWSC 1329

Supreme Court New South Wales

Medium Neutral Citation: 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2021] NSWSC 1329 Hearing dates: 5-8, 11 October 2021 Decision date: 18 October 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Judgment for the plaintiff in the sum of one dollar. (2) Subject to any application in writing being made within seven days to my Associate for a different order, order the plaintiff to pay the defendant's costs of the proceedings. Catchwords: CONTRACTS — Claim for damages alleged to have been suffered as a consequence of the defendant's alleged breach of contract and unconscionable conduct — Plaintiff proposed to develop a site owned by the defendant from which the plaintiff proposed to conduct various business ventures — Agreement for lease between the plaintiff and defendant provided that the plan of subdivision was registered by the Sunset Date, a lease would be granted by the defendant to the plaintiff of one of the newly created lots CONTRACTS — Construction of clauses — Requirement that the defendant take "all reasonable action" to register the Plan and Instrument by Sunset Date — Breach of contract established as defendant did not commit funds to connect the proposed lots to sewerage — Breach was an effective cause of the non-registration of the Plan and Instrument by the Sunset Date — Consequences of breach — Right to damages — Plaintiff claims damages amounting to wasted expenditure and loss of chance to make a profit on the development — McRae v Commonwealth Disposals Commission and The Commonwealth v Amann Aviation Pty Limited distinguished — Construction and effect of clause 12.3 — The damages claimed by the plaintiff would not fall within either the first or the second limb of Hadley v Baxendale — Plaintiff entitled to nominal damages CONTRACTS — Alleged unconscionable conduct — Not necessary to decide if any of the allegations relate to conduct in "trade and commerce" — None of the particulars either individually or in combination lead to the inference that the defendant behaved in an unconscionable manner — The Plaintiff took a calculated risk which did not pay off — The Council neither asked for the hangar to be built nor did it have a say in its cost — Council subsequently acquired the hangar for one dollar in accordance with the lease — Unconscionable conduct claim is not made out Legislation Cited: Cessnock Local Environment Plan 1989 (NSW) Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 21, 22, 236, 237 Corporations Act 2001 (Cth), s 601AD Environmental Planning and Assessment Act 1979 (NSW), ss 4.53, 80, 80A Hunter Water Act 1991 (NSW), s 50 Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Local Government Act 1993 (NSW), ss 409, 508A, 621, 624 Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 42.1 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 Ansett Transport Industries (Operations) Pty Limited v The Commonwealth (1977) 139 CLR 54; [1977] HCA 71 B P Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 336; [1982] HCA 24 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; [1990] HCA 17 Darlington Futures Limited v Delco Australia Proprietary Limited (1986) 161 CLR 500; [1986] HCA 82 Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1; [1986] HCA 3 Grant v John Grant & Sons Proprietary Ltd (1954) 91 CLR 112; [1954] HCA 23 Hadley v Baxendale (1854) 9 Exch 341; 156 ER 14 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] HCA 79 New South Wales Rifle Association v Commonwealth [2012] NSWSC 818; (2012) 266 FLR 13 Qantas Airways Limited v Cameron (1996) 66 FCR 246 Robinson v Harman (1848) 1 Exch 850; 154 ER 363 Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 The Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64; [1991] HCA 54 Wardy v Hardy [2002] NSWCA 215 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: NSW Land Registry Services, Registrar General's Guidelines Category: Principal judgment Parties: 123 259 932 Pty Ltd (Plaintiff) Cessnock City Council (Defendant) Representation: Counsel: D Williams SC / B Kaplan (Plaintiff) D Cook SC / G Ng (Defendant)