Black & Ors v Australand Holdings Pty Ltd [No 2] [2000] NSWCA 324

New South Wales Court of Appeal

CITATION : Black & Ors v Australand Holdings Pty Ltd [No 2] [2000] NSWCA 324 revised - 26/04/2007 FILE NUMBER(S) : CA 40803/98 HEARING DATE(S) : Decided on written submissions JUDGMENT DATE : 23 November 2000

PARTIES : Richard Black, Sciara Holdings Pty Limited, Johneen De Groot-Black (Nee Brazier) (Appellants) v Australand Holdings Pty Ltd (Respondent) JUDGMENT OF : Mason P at 1; Priestley JA at 3; Fitzgerald JA at 88

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED 2045/98 FILE NUMBER(S) : LOWER COURT Einstein J JUDICIAL OFFICER :

COUNSEL : P.E. King / M.J. Watts (Appellant P. Greenwood SC / A. Ridley (Respondent SOLICITORS : Forshaws Neill (Appellant Colin Biggers & Paisley (Respondent) CATCHWORDS : Application to reopen appeal - contract - right of first refusal to purchase units in proposed new building - no binding contractual agreement made for option variation - appellants submit that it was not open to Court of Appeal to decide case on basis that it did - issue on which reopening sought not one of common ground between parties - appellants' letters to respondent not an effective nomination of units as contemplated by contract - no estoppel or waiver of contractual rights binding on the respondent - within power of Court to entertain argument on which case decided - discussion of Court's power to allow new ground of appeal to be added which had not been argued at first instance - leave refused to reopen hearing of the appeal on common ground point - leave refused to reopen appeal on basis of additional evidence relating to Trade Practices case on basis that court misapprehended what was in issue - leave refused to reopen appeal to reconsider rejection of Trade Practices case on basis of defective discovery - refusal of appeal about costs - appeal dismissed with costs - (ND). - LEGISLATION CITED : Supreme Court Rules Trade Practices Act 1974 (Cwlth) Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 Banque Commerciale SA en Liquidation v Akhil Holdings Pty Ltd (1990) 169 CLR 279 Coulton v Holcombe (1986) 162 CLR 1 National Australia Bank Ltd v KDS Construction Services Pty Ltd (in liq) (1987) 163 CLR 668 CASES CITED: O'Brien v Komesaroff (1982) 150 CLR 310 University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 Waltons Stores (Interstate) Ltd v Maher (1986) 5 NSWLR 407 Water Board v Moustakas (1988) 180 CLR 491 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 DECISION : Application to reopen the appeal dismissed with costs.