Supreme Court New South Wales Medium Neutral Citation: Vella v Nergl Developments Pty Ltd & Ors (No. 3) [2021] NSWSC 1352 Hearing dates: 16 July 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Equity Before: Slattery J Decision: Court settles form of instruments to complete the remedy of specific performance. Parties directed to bring in short minutes of order to give effect to these reasons. Catchwords: SPECIFIC PERFORMANCE – form of orders – orders for specific performance of heads of agreement to settle litigation and to grant an easement – orders for specific performance already made in a 2020 judgment which was upheld on appeal in 2021 – matter remitted to the trial judge to settle the final form of orders – dispute about whether caveats lodged by the proposed dominant tenement holder of the agreed easement over the proposed servient tenement should be withdrawn before a Conveyancing Act 1919, s 88B instrument lodged and deed of settlement executed – disputes about the form of instrument under Conveyancing Act 1919, s 88B – ascertainment of what was required by the original heads of agreement – scope of the Court's discretion to settle additional terms to achieve that specific performance of an agreement. Legislation Cited: Civil Procedure Act 2005, ss 56, 57 Real Property Act 1900, s 74MA(2) Supreme Court Act 1970, s 23 Cases Cited: Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 Butt v M'Donald (1896) 7 QLJ 68 Ford-Hunt v Raghbir Singh [1973] 2 All ER 700 Malago Pty Ltd v AW Elliz Engineering Pty Ltd (2013) 29 BCL 417 Nergl Developments Pty Ltd v Vella [2021] NSWCA 131 Riltang Pty Ltd v L Pty Ltd (2004) 12 BPR 22,347 Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 Vella v Nergl Developments Pty Ltd & Ors (No. 2) [2021] NSWSC 648 Vella v Nergl Developments Pty Ltd & Ors [2020] NSWSC 1405 Texts Cited: PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters) Category: Costs Parties: Plaintiff: Vicki Vella First Defendant/Cross-Claimant: Nergl Developments Pty Limited ACN 008 645 734 Second Defendant: Peter Vella Fourth Defendant/Cross-Claimant: Kindelon Pty Ltd Representation: Counsel: Plaintiff: J Sexton SC, D Neggo First and Fourth Defendant/Cross-Claimants: D. Miller SC, P. R. Gaffney Solicitors: Plaintiff: C. Frawley, M&K Lawyers Group Pty Ltd First and Fourth Defendant/Cross-Claimants: L. Walker, Minter Ellison File Number(s): 2018/312416 Publication restriction: No Judgment 1. This is my third judgment in these proceedings. I gave the principal judgment on 13 October 2020: Vella v Nergl Developments Pty Ltd & Ors [2020] NSWSC 1405 ("the principal judgment"). In the principal judgment, the plaintiff, Mrs Vella, was substantially but not wholly successful in her claim against the first and fourth defendants, respectively Nergl Developments Pty Ltd ("Nergl") and Kindelon Pty Ltd ("Kindelon"). 2. My second judgment on 9 June 2021 dealt with the issue of costs: Vella v Nergl Developments Pty Ltd & Ors (No. 2) [2021] NSWSC 648 ("the costs judgment"). As a result of the costs judgment, the Court ordered: (1) Nergl and Kindelon to jointly and severally pay 80% of Mrs Vella's costs of the proceedings up to 30 October 2019; (2) Nergl to pay 80% of Mrs Vella's costs of the proceedings after 30 October 2019, but excluding the costs of the costs issues; and (3) Mrs Vella to pay 60% of the common costs of Nergl and Kindelon on the costs issues. 3. Nergl and Kindelon appealed from the principal judgment and the costs judgment. The appeal was dismissed but the Court of Appeal varied Orders (1) and (2) of the orders consequent upon the costs judgment to remove potential ambiguity in their guidance to a costs assessor: Nergl Developments Pty Ltd v Vella [2021] NSWCA 131 ("the Court of Appeal judgment"). Order (1) was varied to signpost the date of the Heads between the parties, as the date from which Nergl and Kindelon were liable to jointly and severally pay Mrs Vella's costs, and the costs were made inclusive of the end date of 30 October 2019. Order (2) was varied to remove the exclusion of the costs of the costs issues, such that Nergl would be responsible to pay 80% of Mrs Vella's costs of the proceedings after 30 October 2019. 4. This judgment should be read with the Court's previous judgments. Events, matters and persons are referred to in all my three judgments in the same way. 5. This judgment concerns two areas of disagreement about the final orders in the proceedings: (1) whether Nergl's caveats will be ordered to be removed from the Vella land now, or at a later time after a damages dispute between the parties is resolved; and, (2) with which of the parties' competing draft versions of the Deed of Settlement and Release ("Settlement Deed") and the s 88B Instrument should the Court order to specifically perform the Heads be given effect. 6. After the trial of these proceedings Nergl alleged that the Vella land had been damaged and that an order should be made for the alleged damage to be rectified. Whether any damage has occurred to the Vella land and the consequence of any such damage are in dispute. The parties have agreed it is more convenient to address these damages issues after the form of final orders has been settled. But these damages issues are relevant to the resolution of issue (1), the timing of the removal of the caveats. 7. These reasons deal with each of issues (1) and (2) in turn. But first it is useful to focus upon the jurisdiction presently being exercised by the Court. 8. In deciding on the timing of the removal of Nergl's caveats and in choosing between the parties' competing draft documents, the Court is exercising two aspects of its jurisdiction. 9. The first aspect of the Court's jurisdiction being exercised is its equitable jurisdiction ancillary to the grant of a decree of specific performance of the Heads. This jurisdiction is well established. Once a decree of specific performance is made, the contract and its performance are within the Court's control. As such, any supplementary or ancillary orders necessary to give effect to the contract can be made after the decree: see eg: Ford-Hunt v Raghbir Singh [1973] 2 All ER 700; [1973] 1 WLR 738; Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201; [2007] NSWCA 104, at [125]. The Court may make detailed orders for the implementation of the relief granted. For example, this may involve detailed orders for the settlement of a transfer or for the payment of a purchase price as adjusted: PW Young, C Croft, ML Smith, On Equity (2009, Thomson Reuters), at 1103. 10. The Court's role is to settle disputed terms that are required by the primary agreement being specifically performed (or as are otherwise agreed between the parties) rather than adding terms that seem reasonable and consistent with the parties' agreement: Malago Pty Ltd v AW Elliz Engineering Pty Ltd (2013) 29 BCL 417; [2012] NSWCA 227 at [33] – [47]. Although what is required by an original agreement and what is reasonable should substantially overlap. 11. The Court's decree of specific performance gives all parties involved liberty to apply to the Court for clarification about their rights under the contract and the working out of the specific performance order. The width of the Court's jurisdiction to superintend the enforcement or working out of an order for specific performance or even to substitute another form of relief for it was discussed by White J (as his Honour then was) in Riltang Pty Ltd v L Pty Ltd (2004) 12 BPR 22,347; [2004] NSWSC 977, at [51]. 12. The second aspect of the Court's jurisdiction being exercised here is under Real Property Act 1900, s 74MA(2), which involves the making of orders for the removal of caveats and ancillary to that the making of "such other or further order as it thinks fit". The jurisdiction to make orders under s 74MA(2) is informed by the purpose of the primary statutory jurisdiction empowering the Court to remove a caveat and otherwise do justice associated with the removal. It is unlikely that this jurisdiction would conflict with the Court's other jurisdiction related to the remedy of specific performance and there is no conflict here. (1) Removing Nergl's Caveats 1. The first issue relates to the implementation of Order (6) of the orders made with the principal judgment. The point in issue is whether Nergl's caveats should be ordered to be removed from the Vella land now, or later. These reasons decide that the caveats should be removed now. 2. Nergl's Submissions. Nergl contends that Mrs Vella has allowed certain damage to occur to the Vella land after the Court concluded its hearing and before delivery of the principal judgment. As a result of that alleged damage, Nergl submits Mrs Vella has not performed the Heads and that the Court now should not order under Real Property Act 1900, s 74MA(2) that Nergl and Kindelon remove the caveats, because Mrs Vella has not satisfied the requirement of Order (6) to perform the Heads. Analysis of this issue requires focus upon the alleged damage to the Vella land and the relationship of that damage to the existing orders for specific performance. 3. After the Court reserved judgment in November 2019, prior to giving the principal judgment, Mrs Vella licensed the occupation of parts of the Vella land to an entity associated with the listed Stockland Real Estate Investment Trust ("Stockland"), apparently for the purposes of potential real estate development involving Stockland. The result of granting that license is that Stockland erected a site compound and stockpiled various materials on site. Stockland has an obligation under the license from Mrs Vella to indemnify her against any claims, losses or damage arising from Stockland's licensed activities. 4. The Court is not invited to determine this damages issue during the present application. But the evidence at least supports the inference that pursuant to the license from Mrs Vella, Stockland has accessed the site and has used it as a compound for storing and stockpiling materials during the term of the license. 5. Nergl claims that Stockland's occupation of the land has caused damage to the road pavement over the Easement. Nergl's expert, Mr Oliver Walsh, a civil engineer, is of the opinion that observed cracking and distress in the pavement surface is consistent with and probably was caused by the movement of heavy vehicles and the placement of a shipping container and construction supplies on the pavement surface. Mr Walsh says that the provenance and the extent of the damage are still unconfirmed and should be assessed by a geotechnical engineer who can prescribe the necessary repair works. Mrs Vella responds to this expert evidence with her own expert evidence, which is dealt with below. 6. Nergl's case is that Mrs Vella's conduct in causing or permitting the road that Nergl built to be damaged by Stockland has two legal consequences relevant to the present contest about the proper form of the grant of relief. 7. Nergl argues that the first legal consequence of Mrs Vella's conduct is that this alleged road damage places Mrs Vella in breach of the Heads. Nergl refers to the principal judgment at [10], [49], [61], [145] and [151], which record the parties' mutual objective of registering an Easement granting a right of entry and undertaking further construction works on an Easement which had already been constructed as a road. Nergl also refers to Heads, Clause 7, which provides that the holder of the dominant tenement, Kindelon, accepts the relevant risks and liabilities associated with the Easement and indemnifies Mrs Vella in relation to those risks and liabilities, except to the extent that she may herself occasion the liability and that Nergl otherwise assumes the obligations to repair and maintain the Easement. 8. Nergl contends that these circumstances permit the implication of a term as a matter of fact into the Heads: that Mrs Vella would not cause or permit any damage to the area of the Easement, or at least to the works already constructed in the Easement prior to the grant of the Easement contemplated by the Heads. Alternatively, Nergl submits that by causing or permitting such damage Mrs Vella breached an obligation at law to do all things necessary to enable the other party to have the benefit of a contract: Butt v M'Donald (1896) 7 QLJ 68; (1896) 7 QLJ (NC) N34. 9. Nergl argues that the second legal consequence of Mrs Vella's conduct is that by causing or permitting the alleged damage to the Vella land between hearing and judgment, Mrs Vella has undermined one of the fundamental factual bases on which the Court gave the principal judgment. In the principal judgment the Court found that all that would be required to complete the road over the Easement is to curate the unsealed sub-base covering some 40% of the Road Reserve and then to seal it with bitumen and complete dish drains upon the reserve: the principal judgment at [161]. In other words, Nergl submits that by damaging the road surface Mrs Vella has rendered incorrect one of the Court's factual findings in the principal judgment. 10. Nergl submits the following four consequences flow from Mrs Vella's alleged breach of contract and her conduct undermining the Court's principal judgment. 11. First, Nergl says that Mrs Vella's breach of the Heads means that, properly construed, Order (6) made with the principal judgment should not now require Nergl to withdraw the caveats, because the proviso to that order requires Mrs Vella to comply with the Heads (reflecting the Court's reasons at [192]) and she has not complied, because she is in breach. 12. Secondly, Mrs Vella should be required to "do equity" in order to gain the benefit of the remedy of specific performance. Nergl submits that the appropriate way for her to do equity is for the Court to direct her to remediate the road and place it back in the position that it was at the time that the principal judgment was reserved and before the damage occurred to it, or alternatively, for her to pay over or secure the amount of money necessary for those repairs to be done. 13. Thirdly, Nergl submits that another way for the Court to do equity is for the Court to stay the execution of the orders made with the principal judgment, by not requiring specific performance until Mrs Vella remediates the road or pays over the amount necessary for those repairs to be done. 14. Fourthly, Nergl submits that the Court may impose a procedural stay order within its inherent power (Supreme Court Act 1970, s 23) to do whatever is necessary to prevent the occurrence of an injustice in the circumstances of the case: see for example, Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 at [676D] – [677C]. 15. Nergl submits the Court should prevent avoidable injustice in the following circumstances. The parties agreed in the Heads that responsibility to maintain the road and liability for any defect caused to it would pass from Mrs Vella to Kindelon once the Easement was granted. Yet while judgment was reserved Mrs Vella allowed the Easement Area to be damaged for her own financial benefit, and so an injustice would be caused unless a stay was imposed until that damage was rectified. 16. These various alleged requirements to comply with the Heads, to do equity, or for the proceedings to be stayed pending repair to the road, Nergl submits, have consequences for the terms upon which specific performance of the Heads will be ordered. Nergl submits that the Court should make directions for it to file a motion seeking a stay order whilst evidence in preparation for the damages claim proceeds, and in the meantime, Nergl should not be required to withdraw its caveats because Mrs Vella remains in breach of the Heads. 17. Analysis. Nergl's submissions are not persuasive. The Court's reasons for rejecting Nergl's submissions are informed to a degree by Mrs Vella's submissions which are considered below, together with the Court's analysis. Not all of Mrs Vella submissions are taken up in the Court's analysis. 18. Mrs Vella seeks to answer Nergl's submissions in several ways. First, Mrs Vella takes issue with the facts. Mrs Vella's expert, Mr Robert Moore, another civil engineer, has inspected the site and says that no damage to the road surface across the Easement can be detected. 19. A high-level comparison of Mr Moore's evidence and Mr Walsh's evidence is all that is possible at this stage. There is a remarkable difference between the two experts, which presages a potentially vigorous contest about whether any damage to the road surface has taken place and indicates that a wide range of outcomes is possible. The only conclusion that can safely be drawn from this material so far is that the damages claim will be drawn out and the outcome will be uncertain. This conclusion immediately raises the practical question of whether yoking a damages claim of such uncertain value, with such contentious facts and of such presently incomplete readiness for hearing as a condition of finalising the grant of specific performance, is a wise course. It is not the Court's first choice, unless considerations of equity and justice clearly require that outcome. 20. Next Mrs Vella submits that Nergl's inchoate claim for damages for physical damage to the Easement has nothing to do with the grant of the Easement itself, and that Nergl's position wrongly conflates the two. Indeed, she submits the Heads do not mention the current paved physical road over the Easement. Put another way, Mrs Vella submits that the subject matter of the Heads - settling the proceedings - requires the grant of the Easement to resolve Mrs Vella's claim to remove the caveats, as this was the common consensus of the parties. 21. This is overly simplistic. The principal judgment (at [190] – [194] and the order at [196](6)) considered the Heads and the broader issues and placed conditions upon removal of the caveats which Mrs Vella must observe, whatever may be the common consensus of the parties. 22. Mrs Vella next argues that it was the defendants who introduced the concept of specific performance into the proceedings and all the Court ever needed to have done in these proceedings was to make orders for the removal of the caveats under Real Property Act, s 74MA(2). 23. But this argument is also not persuasive. After analysis, the Court has made orders for specific performance with the principal judgment (Order (1)) and in furtherance of that order, the Court has imposed terms on the removal of the caveats in Order (6). Now is not the time to vary those orders. The real question is how Order (6) should be interpreted and applied in the changed circumstances now before the Court. 24. But there are several reasons why the Court should not accede to Nergl's submissions to stop the registration of the Easement and the removal of the caveats until Nergl's damages claim is resolved. 25. First, accepting that Mrs Vella bears an obligation to "do equity", it is not easy to see that in order to do equity Mrs Vella must first remedy alleged but disputed damage to the road over the Easement. The requirement for Mrs Vella to do equity must be grounded in Kindelon's existing legal or equitable rights as the grantee of the Easement: principal judgment at [191]. But whether Kindelon has any existing rights to have the road surface over the Easement repaired is raised only lately, is disputed as a matter of fact and of law, and can only be resolved after further hearing at an uncertain time in the future. In the meantime, the parties would gain significantly from the Court finally quelling their major dispute by perfecting the specific performance relief and getting the Easement registered and the caveats removed. This will enable them all to move on and deal independently with these valuable assets. 26. Secondly, Nergl's contention (that the damage to the road, apparently occasioned by Stockland as a result of the license granted by Mrs Vella, was a breach of an implied term of the Heads) is doubtful. There is no express term in the Heads requiring Mrs Vella not to occasion damage to the Easement. Indeed, the text of the Heads points the other way. The Heads, Clause 7 indemnity and its allocation of "all risks and liabilities associated with the Easement" between Kindelon and Mrs Vella – contemplating that such risks and liabilities would arise – hardly leaves much room for an implied term that Mrs Vella should not cause or allow any damage to the road surface. Moreover, in the carveout from Kindelon's liability, Clause 7 contemplates that damage or liability may arise "by the actions of Vella". 27. Thirdly, Nergl's argument is further grounded in the proviso within Order (6) of the orders made with the principal judgment, that the withdrawal of the caveats would occur "upon the performance by the plaintiff of the other obligations imposed on her under the Heads". Nergl asks how can the withdrawal of the caveats be permitted now, without Mrs Vella performing those "other obligations imposed on her under the Heads"? 28. Nergl's argument stretches the rationale for this proviso, a rationale that was expressed in the principal judgment at [191] and [192]. At [191] the Court referred to the limits on the doctrine of requiring plaintiffs in equity to do equity: namely, the Court cannot impose arbitrary terms upon the grant of relief that are not justified by the defendant's existing legal or equitable rights. Then at [192] the Court stated: "[192] Here, the Court's analysis shows that Mrs Vella will have to perform all of her side of the bargain represented by the Heads in order to obtain the removal of the caveats that she requests. To the extent that her prayers for relief 11A and 11B do not do this, they will need to be modified. If more detailed orders are required, they can readily be applied for and supplementary orders will be made if required." 1. Paragraph [192] was the foundation for Order (6). But what the Court had in mind in Order (6) was the identifiable concrete obligations set out in the Heads that Mrs Vella would have to perform in order to obtain removal of the caveats, which had been the subject of submissions in the proceedings up to that point. These included Heads, Clause, 1, 2, 3, 4, 9 and 10, all of which imposed coordinate positive obligations upon Mrs Vella. And it is to be remembered that at no stage before pronouncing Order (6) in the form that it did, was the Court asked to consider the possibility of an implied term in the Heads of the kind for which Nergl now contends. The Court will continue to insist upon compliance with Mrs Vella's positive obligations under the Heads. But Order (6) was not an invitation to open a debate about how extensive were the implied terms in the consensus that might constitute "all of her side of the bargain represented by the Heads". Paragraph [192] and Order (6) do not require the Court to consider this issue before implementing the orders for specific performance. 2. Fourthly, the requirement upon a plaintiff in equity to do equity is one part of the Court's moulding of final discretionary relief by way of specific performance and is itself discretionary. Even if Nergl were otherwise correct in its contentions, practical considerations of fairness and reason favour disengaging this new issue from the existing issues in the proceedings. It is difficult to see why the determination of the damages issue should cause any delay to the registration of the Easement and the removal of the caveats. There is no basis to conclude that Mrs Vella does not have the means to pay for rectification to proven damage if required. On Nergl's own case there is no suggestion that she is herself the cause of the damage and she will have the benefit of an indemnity from Stockland for any loss, an entity whose indemnity can safely be assumed to be of substance. 3. And Mrs Vella's argument is persuasive, that the damages claim has very little to do with the structure of the Heads, which concern the registration of the Easement. The Court of Appeal has observed in the Court of Appeal judgment (at [72]) that it is unfortunate that this application for specific performance of an agreement has taken so long to be resolved. The Court of Appeal's observations reflect the present imperative that it can only benefit these parties to bring this part of these proceedings to a conclusion, so they can move on with their commercial and investment decisions concerning the Vella land and the surrounding lands for their own benefit. 4. It is therefore not necessary in the meantime for there to be any stay or other condition imposed or other relief granted in relation to alleged damage to the road. The damages claim can proceed either by way of an Amended Cross-Claim or in separate proceedings. This will enable the parties to have a secure legal platform for the background resolution of what is an incidental dispute about what may be a very small amount, whilst they get on with developing their lands. 5. There are many options for the resolution of this damage issue. It could for example be referred out to a referee. It could be the subject of separate proceedings in the District Court. The parties should discuss the options and see if some mutually agreed course can be reached. If not, the Court will give directions. But the result is that the Court will make orders for the removal of the caveats upon the execution of the Settlement Deed and of the s 88B Instrument to which these reasons now turn. (2) The Deed of Settlement and Release the s 88B Instrument 1. As a result of the exchanges of submissions the parties have agreed upon the terms of the proposed Settlement Deed. But they still have some remaining disagreements about their proposed Conveyancing Act, s 88B Instrument. The text of this judgment does not set out the full text of the parties' competing versions but it assumes a familiarity with the marked up versions of the s 88B Instrument showing the parties' different proposed amendments. At times this judgment will suggest a form of wording to resolve the parties' differences but the parties are free to use the reasoning of this judgment to come up with a wording that they mutually regard as more satisfactory. 2. Kindelon is the current owner of the Lot 103, the land benefited in the proposed s 88B Instrument and will be referred to interchangeably with the Grantee in these reasons. 3. 88B Instrument - The "Construction Certificate" Definition. Mrs Vella objects to the addition of words in the definition of "construction certificate", to expand the definition beyond reference to the certificate issued on 8 April 2009. The words to which Mrs Vella objects commence "as amended or varied or any new construction certificate issued in respect to the consent". Mrs Vella's concern is to avoid a definition of "construction certificate" which encompasses any new construction certificate, it being accepted that the parties contemplated five possible adjustments in the Heads. Mrs Vella's point is that four of the five adjustments in the Heads have nothing to do with the construction of the Easement. The other adjustments relate to events on Kindelon's own land and do not touch the Vella land. Mrs Vella does not oppose an amendment to the definition to read "'construction certificate' means construction certificate number [number not published] issued on 8 April 2009, or any amendment to that construction certificate insofar (only) as it concerns the filling of dams on [Lot 103]". 4. Nergl submits the parties must be taken to have contemplated there would be some amendments to the construction certificate, because they agreed to consent to adjustments to the planning consent under Heads, Clause 9: including by an application "to modify the Planning Consent" and see also the definition of "adjustments" in the Heads. 5. Nergl is generally correct in this, although its form of words is more generous to it than the Heads, which define the parties respective obligations. The Heads, Clause 9, does contemplate that further applications will be made to give effect to the "adjustments" as defined in the Heads. These may lead to the need to issue a fresh Construction Certificate. So the definition of "Construction Certificate" should be varied after the words "8 April 2019" to add the words "as amended or varied to give effect to clause 9 of the Heads of Agreement made between the Grantee and the Grantor and other persons on 12 December 2018". The liberty to amend the Construction Certificate does not need to be any wider than Clause 9 of the Heads. 6. 88B Instrument - Clause 3.2, Maintenance and Repair. Mrs Vella presses her amendment to Clause 3.2(c) to delete the words "Easement Site and" on the basis that the area of the "Road Reserve" ultimately dedicated may not necessarily cover the full area of the Easement. She concedes that it probably will cover the entire area of the Easement, but there is no certainty of that. Her submission is that if the "Road Reserve" does not cover the entire area of the Easement, an obligation to maintain and repair the balance of the Easement Area should be reserved. On the other hand, she submits if the "road reserve" does cover the entire area of the Easement, her amendment is probably otiose but does no harm. 7. Nergl submits that the words "Easement Site and" should not be deleted from clause 3.2(c) as Mrs Vella suggests, because the obligations of maintenance and repair in Clause 3.2(a) and (b) relate to the "Easement Site". 8. The Court accepts Nergl's submissions that Heads, Clause 7 makes clear that all the Grantee's obligations to repair and maintain the Easement end upon dedication of the Road Reserve. There is no room in Clause 7 for the Grantee to have an obligation to maintain or repair a part of the Easement that happens, for example, not to be dedicated as a public road. 9. This follows from the words in Clause 7 that "[u]ntil such dedication [as public road] the holder of the dominant tenement accepts all risks and liabilities associated with the Easement…and will assume the obligation to repair and maintain it [the Easement] in good condition". Upon the proper construction of these words the whole of the Grantee's obligation to repair and maintain the Easement ends upon dedication of the public road. The words do not bear the construction that some sliver of land that is within the Easement Site, but which is not dedicated as a Public Road will continue to carry an obligation of repair and maintenance. 10. So, the result is that the words "Easement Site and" will not be deleted from Clause 3.2(c). 11. Clause 3.4(b) – Costs and Indemnity. Mrs Vella proposes a new Clause 3.4(b)(iii) and (iv), which require Kindelon to bear all risks and liabilities associated (a) with the dedication of the Road Reserve to Council and (b) with any breach by Kindelon of any obligation or liability contained in Clause 3 of the s 88B Instrument. 12. Nergl's submission in reply to this is accepted. Nergl says that Mrs Vella's proposal is inconsistent with the Heads. This is correct. Kindelon did not agree under the Heads to assume these specific risks and liabilities. Heads, Clause 7 is expressed in more general terms. Kindelon will not be required to agree to these words in the s 88B Instrument. 13. Clause 3.4 (c) – Indemnity. Nergl also proposes that Clause 3.2(a) and (b) should be subject to its proposed Clause 3.4(c). Nergl proposes in its Clause 3.4(c) that prior to dedication of the Road Reserve, that the Grantor, Mrs Vella, "must not use the Easement Site or permit the Easement Site to be used in a way that damages any road, carriageway, kerbs, gutters, footpaths, Services, verges, or associated infrastructure within the Easement Site". This amendment is perhaps borne out of the dispute that has occurred due to Stockland's recent occupation of the Vella land. 14. Mrs Vella disagrees with Nergl's proposed Clause 3.4(c) and suggests an alternative. But her alternative need not be considered as Nergl's proposed Clause 3.4(c) will not be included. The Heads do not restrict Mrs Vella's use of the Easement Site prior to its dedication as a Public Road. If damage occurs from such action by Mrs Vella or her agents, it will fall within the exclusion to the indemnity for Mrs Vella in Clause 3.4(c). It follows from the Court's rejection of Nergl's proposed Clause 3.4(c) that Clauses 3.2(a) and (b) will not be made subject to Nergl's proposed Clause 3.4(c). 15. Clause 4.1 – Grant of Easement. Nergl disagrees with Mrs Vella's proposed amendments to Clause 4.1(a)(ii), (iii) and (b)(v). 16. As to Mrs Vella's proposed Clause 4.1(a)(ii) and 4.1(b)(v), Nergl submits that the restrictions on Kindelon contained within these proposed wordings from undertaking various activities on the Easement Site were not part of the Heads and that some of them are unreasonable. Making orders that seem reasonable to one or other party and which are generally consistent with the parties' agreement is not enough to justify the inclusion of terms in a contested suit for specific performance. The Heads do not impose these additional restrictions, nor do they imply that those additional restrictions should be included. Nergl's submission is accepted. Mrs Vella's proposed clauses will not be included 17. Mrs Vella also proposes Clause 4.1(a)(iii), which seeks to place a 12-month term on Nergl's use of a construction easement within the Easement Site. Nergl objects to this on the grounds that it was uncontroversial during the hearing that Nergl had a construction easement within the right of carriageway (see the principal judgment at [151]): the only issue at trial was whether that construction easement extended outside the right of carriageway. Nergl submits that it was common ground that the right to construct a road within the right of carriageway would subsist until the contemplated road was built and that Mrs Vella cannot change position at this late stage on this issue by introducing additional time restrictions on construction activity within the Easement as an afterthought. 18. Mrs Vella submits that her proposed form of words is justified by the historical delay in the completion of the works. 19. But Nergl's submissions are the more persuasive on this issue for two reasons. First, the original hearing was conducted upon the assumptions that Nergl has identified and adding further time restrictions to the construction easement at this late stage would prejudice Nergl. Secondly, the Heads do not require the inclusion of such a time restriction. 20. In Clause 4.1(c)(i)-(iii), Nergl proposed various restrictions upon Mrs Vella's use of the Easement Site and the Vella land that might damage Nergl's works, upon her ability to build structures on the Easement, and upon her capacity to interfere with the surface level of the Easement Site, in a way that might affect the intended design of Nergl's roadworks. Mrs Vella sought to strike out these proposed clauses. 21. Mrs Vella's submissions on Clause 4.1(c) are persuasive. The sub-clauses proposed by Nergl will not be included in the s 88B Instrument. Nergl's proposed wording is not required by the Heads and was not the subject of a contest at trial and there is no call for the inclusion of the additional words, as the law of easements already provides a satisfactory balance of rights between the parties, as to what Mrs Vella can do with the Vella land. 22. Clause 4.2 – Termination of Rights. Mrs Vella proposes the inclusion of words in Clause 4.2 that presuppose her success in contending for the inclusion of words in Clause 4(a)(iii). But Mrs Vella was unsuccessful in seeking the inclusion of her proposed words in Clause 4(a)(iii). In consequence, she cannot amend Clause 4.2 in the manner she proposes. The parties are encouraged to do this as soon as convenient. 23. Clause 4.3 – Costs and Indemnity. The Court will make the same ruling with respect to Clause 4.3 as it did with Clause 3.4. Mrs Vella's proposed amendment to Clause 4.3 would require Nergl to undertake risks and liabilities for which it did not contract under the Heads. 24. If the Court has overlooked resolving any dispute about the s 88B Instrument, the parties should take advantage of the grant of liberty to apply and the Court will deal with it, so that the Heads can finally be specifically performed. Conclusion and Orders 1. As a result of this judgment, the parties should be in a position now to finalise the Settlement Deed and the s 88B Instrument which upon execution and upon compliance with Order (6) of the principal judgment (as explained in these reasons) will lead to the withdrawal of the caveats. They will be given a short opportunity to do this. Otherwise the parties now should have all they need to finalise short minutes of order to give effect to these reasons. The Court will fix the proceedings for mention to deal with any outstanding issues. 2. For these reasons the Court makes the following orders: 1. Direct the parties by 4pm on 4 November 2021 to bring in agreed short minutes of order to give effect to these reasons (and if not agreed, marked up short minutes showing the parties' differences); 2. Adjourn the proceedings to 9am on 5 November 2021 to make final orders, or orders for the further management of any remaining issues in the proceedings; 3. Grant liberty to apply. ********** Amendments 04 November 2021 - [5] line 6 - "Court" instead of "Court's". [12] lines 2, 4 - extra spaces removed. [20] line 7 - "M'Donald" instead of "McDonald"; additional citation reference inserted. [27] line 6 - "and so" inserted after "benefit,". [29] line 2 - comma removed. [41] line 5 - "Clause" capitalised. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2021