Altius Pty Ltd v Abignano Nominees Pty Ltd [2023] NSWCA 177

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Altius Pty Ltd v Abignano Nominees Pty Ltd [2023] NSWCA 177 Hearing dates: 19 July 2023 Decision date: 08 August 2023 Before: Leeming JA at [1]; Adamson JA at [16]; Stern JA at [123] Decision: (1) Allow the appeal. (2) Set aside orders 1, 2 and 4 made by Walton J on 21 December 2022 and in lieu thereof make the following orders: (a) Judgment for the defendant. (b) Order the plaintiffs to pay the defendant's/cross-claimants' costs of the proceedings. (3) Order the respondents to pay the appellants' costs of the appeal. Catchwords: CONTRACTS — Construction — Context — where unit trust formed to undertake property development joint venture — where parties brought joint venture to an end via an option agreement — where debt was claimed for outstanding amount loaned to unit trust — whether outstanding loan was discharged by option agreement — whether loans were "pursuant to" joint venture agreement — use of context and prior negotiations to demonstrate commercial purpose as an aid to construction Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 42.1 Cases Cited: Birchill v Premier Holdings Pty Ltd [2011] NSWSC 1020 Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 61-62; [1984] HCA 64 Hoyt's Proprietary Ltd v Spencer (1919) 27 CLR 133 Maybury v Atlantic Union Oil Company Limited (1953) 89 CLR 507; [1953] HCA 89 Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 Victoria v Tatts Group Ltd [2016] HCA 5; 90 ALJR 392 Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530; [2004] HCA 56 Category: Principal judgment Parties: Altius Pty Ltd (First Appellant) Sheridan Claire Peterkin (Second Appellant) Jerolu Investments Pty Ltd (Third Appellant) SP Two Pty Ltd (Fourth Appellant) Abignano Nominees Pty Ltd (First Respondent) Biagio Abignano (Second Respondent) Avich Holdings Pty Ltd (Third Respondent) Gennaro Abignano (Fourth Respondent) B & J Abignano Pty Ltd (Fifth Respondent) Representation: Counsel: T Lynch SC / M Harker (Appellants) D Neggo (Respondents)