MAINBADER PTY LTD v PARK [1994] NSWCA 190

MAINBADER PTY LTD v PARK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 17 February 1994, 17 February 1994 [1994] NSWCA 190

CONTRACTS — CONSTRUCTION AND INTERPRETATION OF CONTRACTS — JOINT VENTURE AGREEMENT — COSTS AND EXPENSES PROVISION — WHETHER PURCHASE PRICE OF LAND WAS "COSTS AND EXPENSES"

APPEAL from Equity Division — contracts — construction and interpretation of contracts — joint venture agreement — costs and expenses provision — whether purchase price of land constituted "costs and expenses''. Held: purchase price of land was a cost and expense within meaning of contractual provision.

Handley JA This is an appeal from one of the declarations made by Waddell CJ in Equity on 7 April 1993.

The proceedings in the Equity Division were brought by the present appellant to determine questions of construction arising under a joint venture agreement between the parties relating to the sub-division and sale of residential land on the outskirts of Dubbo. These questions were decided on the language of the agreement without reliance on extrinsic evidence.

The declaration challenged in the appeal is the third which was as follows:

"Upon its true construction cl8 of the Agreement should be read as if the word 'including' were inserted between 'Mainbader' and 'on purchase' in the first sentence thereof and that the word 'costs' where firstly appearing includes all of the costs and expenses mentioned in para7 but does not include the purchase price of the land the subject of the Agreement."

The appellant challenges this declaration in so far as it held that the costs and expenses referred to in cl8 did not include the purchase price of the subject land. It contends that on the true construction of cl8 the costs and expenses there referred to do include such purchase price.