Inndeavor Apartment Wolli Creek Pty Ltd v Maroun Pty Ltd [2024] NSWCA 237

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Inndeavor Apartment Wolli Creek Pty Ltd v Maroun Pty Ltd [2024] NSWCA 237 Hearing dates: 21 August 2024 Date of orders: 30 September 2024 Decision date: 30 September 2024 Before: Ward P at [1]; Stern JA at [2]; and McHugh JA at [81]. Decision: (1) Appeal dismissed. (2) Appellants to pay the respondents' costs of the appeal. Catchwords: CONTRACTS – construction – whether the term "arrears" in Handover Agreement means amount actually owing under Leases or the amount owing under Rent Reduction Arrangements – whether appellants proved the amount owing under Rent Reduction Arrangements CONTRACTS – accord and satisfaction – whether obligation to pay Rental Arrears under Leases was released by an accord, constituted or evidenced by Handover Agreement, which the appellants satisfied APPEAL – where counsel for the appellants at first instance conceded second respondent was not party to Handover Agreement – whether appellants should be permitted to resile from that concession on appeal APPEAL – where appellants contend primary judge should have found entitlement to payment of Rental Arrears was a joint entitlement of first and second respondents – where that contention was not pleaded at first instance – where submissions to this effect were not made to the primary judge – whether appellants should be permitted to raise this contention for the first time on appeal Cases Cited: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Farriss v Axford [2023] NSWCA 255 Suttor v Gundowda Proprietary Limited (1950) 81 CLR 418; [1950] HCA 35 Texts Cited: JD Heydon, Heydon on Contract (Thomson Reuters, 2019) Category: Principal judgment Parties: Inndeavor Apartment Wolli Creek Pty Ltd (First appellant)