Hobhouse v Macarthur-Onslow [2022] NSWCA 158

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hobhouse v Macarthur-Onslow [2022] NSWCA 158 Hearing dates: 28 April 2022 Date of orders: 23 August 2022 Decision date: 23 August 2022 Before: Ward P at [1]; Macfarlan JA at [2]; White JA at [43]. Decision: (1) Allow the appeal. (2) Dismiss the cross-appeal. (3) Set aside the orders made in the Equity Division on 11 June 2021 and in lieu thereof declare that the purported exercise by Mr Macarthur-Onslow on or about 22 April 2021 of the option referred to in cll 5.6 and 12.2 of the Deed of Settlement and Release of 22 February 2021 was ineffective. (4) Order the respondents to pay the appellant's costs of the proceedings in this Court and in the Court below. Catchwords: CONTRACTS — implied term — where the primary judge implied a term into a deed containing an option to purchase land so as to validate the purported exercise of that option — whether the conditions stated in BP Refinery were satisfied — held on appeal that the term was not necessary to give business efficacy to the contract, not "so obvious that it goes without saying" and not consistent with the express terms — further held that it was sufficient that the option, without the implication, was capable of being exercised in many foreseeable circumstances as distinct from all conceivable circumstances EQUITY — remedies — whether the respondent entitled to relief against forfeiture if option to purchase land was not validly exercised — held on appeal that the respondent did not establish any of the "special heads" of fraud, accident, mistake or surprise, or any other circumstances establishing unconscientious conduct on the part of the appellant — circumstances do not amount to an "accident" where they are reasonably within the contemplation of the parties Cases Cited: Bell v Lever Brothers Ltd [1932] AC 161 Besier v Foster (1952) 94 CLR 526; [1952] HCA 14 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; 52 ALJR 20 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14 Hamlyn & Co v Wood & Co [1891] 2 QB 488 Heimann v The Commonwealth (1938) 38 SR (NSW) 691 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 Ikin v The Danish Club "Dannebrog" Inc [2001] VSCA 123 Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 Liverpool City Council v Irwin [1977] AC 239 Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592 Romanos v Pentagold Investments Pty Ltd (2003) 217 CLR 367; [2003] HCA 58 Sanders v Snell (1998) 196 CLR 329; [1998] HCA 64 Stern v McArthur (1988) 165 CLR 489; [1988] HCA 51 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 The Moorcock (1889) 14 PD 64 Category: Principal judgment Parties: Katrina Julia Denzil Hobhouse (Appellant) Lee Macarthur-Onslow (First Respondent) Kalemon Investments Pty Ltd (ACN 000 330 189) (Second Respondent) Representation: Counsel: B Coles QC / M T Keene / C Langford (Appellant) D Studdy SC / J Brezniak (First Respondent)