Lioncrest Capital Holdings Pty Ltd v O’Shaughnessy [2022] NSWSC 1410

Supreme Court New South Wales

Medium Neutral Citation: Lioncrest Capital Holdings Pty Ltd v O'Shaughnessy [2022] NSWSC 1410 Hearing dates: 12-13 September and 6 October 2022 Date of orders: 18 October 2022 Decision date: 18 October 2022 Jurisdiction: Equity Before: Darke J Decision: Further Amended Statement of Claim is dismissed with costs. Catchwords: CONTRACTS – options – Deed of Call Option – calculation of period within which call option could be exercised – where Deed provides for three sequential periods in calculating time within which option can be exercised – where each period expressed to commence either on date specified in Deed or on date immediately following expiry of preceding period – whether commencement of first period should be postponed by one day either as a result of parties' intentions or pursuant to an interpretation provision of the Deed – whether commencement dates of second and third periods should be excluded from calculation of periods – whether corresponding date rule should be applied – definition of "month" supplied by statute – "calendar month" – whether Grantee's purported exercise of option occurred during currency of option – held that Grantee did not exercise call option during currency of option ESTOPPEL – estoppel by representation – conduct of agent – whether Grantor's solicitor represented to Grantee's solicitor that payment of deposit otherwise than in accordance with Deed was acceptable to Grantor – where Grantee purports to pay deposit in unauthorised manner in reliance on alleged representation – held that conduct of solicitor could not reasonably be understood as conveying a representation that Grantor had agreed to exercise of option in a manner contrary to the terms of the Deed – held that estoppel was not made out – Grantor entitled to rely upon the terms of the Deed to assert that option not validly exercised Legislation Cited: Conveyancing Act 1919 (NSW), s 181(1)(d) Interpretation Act 1987 (NSW), s 21(1) Cases Cited: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 Dodds v Walker [1981] 1 WLR 1027 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Ex parte Toohey's Ltd; Re Butler (1934) 34 SR (NSW) 277 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Galaxidis v Galaxidis [2004] NSWCA 111 McGregor v Henry [2006] NSWSC 368 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Payne v Timilty [2021] NSWSC 986 Prowse v McIntyre (1961) 111 CLR 264 Re Weston Application; Employers Mutual Indemnity (Workers Compensation) Ltd v Omni Corporation Pty Ltd (2009) 255 ALR 362; [2009] NSWSC 264 Southbourne Investments Ltd v Greenmount Manufacturing Ltd [2008] 1 NZLR 30; [2007] NZSC 62 Category: Principal judgment Parties: Lioncrest Capital Holdings Pty Ltd (Plaintiff) Peter Joseph O'Shaughnessy (First Defendant) Helene Iris O'Shaughnessy (Second Defendant) Mark Francis Green (Third Defendant) David Patrick Baxter (Fourth Defendant) Robert John Tassell (Fifth Defendant) Ryan John Bennett (Sixth Defendant) Kim Probert (Seventh Defendant) Roslyn Mary McCulloch (Eighth Defendant) Joshua Robert Palmer (Ninth Defendant) Mark Andrew Cottom (Tenth Defendant) Brian Astley Walton (Eleventh Defendant) Representation: Counsel: Mr D D Knoll AM with Ms N Maddocks (Plaintiff) Mr P T Russell (First and Second Defendants) Mr I Griscti (Third to Eleventh Defendants)