Opera Properties Pty Ltd v The Uniting Church in Australia Property Trust (NSW) [2021] NSWSC 1436

Supreme Court New South Wales

Medium Neutral Citation: Opera Properties Pty Ltd v The Uniting Church in Australia Property Trust (NSW) [2021] NSWSC 1436 Hearing dates: 20 October 2021 Date of orders: 8 November 2021 Decision date: 08 November 2021 Jurisdiction: Equity Before: Darke J Decision: Statement of Claim dismissed with costs. Catchwords: CONTRACTS – discharge by frustration – parties entered into Put and Call Option Deed – Deed contemplated a purchase of a subdivided portion of the defendant's land to facilitate road access to plaintiff's development land – envisaged subdivision precluded upon commencement of Pittwater Local Environmental Plan 2014 – options under the Deed could nonetheless be exercised in absence of development consent or registration of subdivision – contract formed upon exercise of either option provided that the defendant would grant a right of carriageway over its land to benefit the plaintiff's land if subdivision not registered for any reason 3 years after date of the contract – whether Pittwater Local Environmental Plan 2014 gave rise to a fundamental commercial difference between contemplated and actual performance – held that conveyance of portion of defendant's property not the only purpose of the transaction – held that the grant of the right of carriageway could be seen as an alternative means of achieving road access to plaintiff's land – Deed not discharged by frustration Legislation Cited: Conveyancing Act 1919 (NSW), s 55(2A) Environmental Planning and Assessment Act 1979 (NSW) Frustrated Contracts Act 1978 (NSW), s 12 Pittwater Local Environmental Plan 1993, cl 12(2) Pittwater Local Environmental Plan 2014, cl 4.6(6) State Environmental Planning Policy No 1—Development Standards, cl 3 Cases Cited: Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 Chinatex (Australia) Pty Ltd v Bindaree Beef Pty Ltd [2018] NSWCA 126 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 Greencapital Aust Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2019] NSWCA 53 oOH! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (2011) 32 VR 255; [2011] VSCA 116 Scanlan's New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169 Thaluntha Pty Ltd v Citic Pacific Mining Management Pty Ltd [2019] WASC 196 Category: Principal judgment Parties: Opera Properties Pty Ltd (Plaintiff) The Uniting Church in Australia Property Trust (NSW) (Defendant) Representation: Counsel: Mr G A Sirtes SC and Dr S A Baron Levi (Plaintiff) Mr A M Cheema (Defendant)