RB FOSTER INTERNATIONAL PTY LTD v DEPOGU PTY LTD AND ANOR [1992] NSWCA 291

RB FOSTER INTERNATIONAL PTY LTD v DEPOGU PTY LTD AND ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ (1); CLARKE JA (2) and SHELLER JA (3) 11 March 1992, 11 March 1992

[1992] NSWCA 291

CONTRACTS — Construction and Interpretation of Contracts — agreement for remuneration based upon the consideration shown in certain "exchanged contracts" — trial judge correct in regarding "exchanged contracts" as a reference to contracts exchanged and completed, not contracts exchanged and later rescinded.

CONTRACTS — construction — agreement for remuneration of a party to a contract based upon the consideration shown in certain "exchanged contracts" — HELD — the trial judge was right to regard that as a reference to contracts exchanged and completed, not contracts exchanged and later rescinded — no question of principle involved.

ORDERS Appeal dismissed with costs.

Gleeson CJ This is an appeal by leave from a decision of Brownie J in the Commercial Division of the Court. The Chief Judge of the Commercial Division, on 16 August 1991, made an order for the separate trial of a question concerning the construction of a written agreement dated 22 December 1987 between R B Foster Real Estate Pty Ltd and Hooker Corporation Ltd. The question of construction raised for separate determination appears at the commencement of the reasons for judgment of Brownie J on 15 November 1991 and his Honour's answer to that question appears on 8 of his Honour's reasons. In my view the answer given by Brownie J to the question raised for separate determination is correct. I find it unnecessary to repeat any of the matters referred to by Brownie J in his reasons for judgment. What I am about to say is expressed on the basis that this judgment can be read together with those reasons.

The approach that leads me to the same conclusion as that reached by Brownie J concerning the meaning and effect of the relevant contractual provision may be stated shortly as follows. The primary entitlement of R B Foster Real Estate Pty Ltd to be paid a sum of money under the agreement in question is conferred by CLI of the agreement. That clause addresses two alternative possibilities, one being that twenty-three strata lots will be built upon the property referred to in the agreement, and the other being that twenty-two strata lots will be built upon the property. Depending upon which of those two events occurs, R B Foster Real Estate Pty Ltd will have a primary entitlement to be paid either $750,000 or $587,000. In either event, however, the entitlement to be paid only arises seven days after settlement of the sale of the last strata lot owned by the initial proprietor constructed on the property. It seems to be common ground that the reference to " the initial proprietor" is a reference to the company named Depogu Pty Ltd.