Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 470

New South Wales Supreme Court

CITATION : Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 470 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4528/97 HEARING DATE(S) : 26 May 2000 JUDGMENT DATE : 26 May 2000

Alanbert Pty Limited (P1) Bernoth Realty Pty Ltd (P2) PARTIES : Cecil Alan Bernoth (P3) Bulevi Pty Ltd (D1) Davhand Pty Ltd (D2) JUDGMENT OF : Hamilton J

COUNSEL : C A B Fairbairn (P1-3) R K Weaver (D1 & 2) SOLICITORS : John Saroff & Company (P1-3) Watson Mangioni (D1 & 2) CATCHWORDS : CONTRACTS [3] - General contractual principles - Offer and acceptance - Matters not giving rise to binding contract - Vagueness and uncertainty - Introductory - Right to second mortgage given by contract for sale of land - Whether term so incapable of any definite or precise meaning that Court unable to attribute any particular contractual intention. Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261 Brown v Gould [1972] Ch 53 CASES CITED : Hammond v Vam Ltd [1972] 2 NSWLR 16 Murphy v Wright (1992) NSW ConvR 55-652 Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 DECISION : Plaintiff entitled to second mortgage over balance of subject land.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 26 MAY 2000

4528/97 ALANBERT PTY LIMITED & ORS v BULEVI PTY LIMITED & ANOR

JUDGMENT

HIS HONOUR:

1 This is a hearing in which one outstanding question in these proceedings has been dealt with. That question was referred to in the last paragraph, [48], of my earlier judgment delivered in this matter: Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261 ("my judgment"); expressions defined in my judgment are used in the same sense in this judgment. I was correct in recording in [48] that this matter had been agitated during the trial, although it had rather dropped from sight at the time of final submissions. 2 The matter is a claim by the plaintiff that it is entitled to be granted by the defendants a mortgage over the land. The claim does fall within the pleadings. Whilst the mortgage is not specifically mentioned in terms in the pleadings, the second further amended statement of claim ("the statement of claim") does specifically allege special conditions A to Q of the March 1994 contracts; the relevant condition here is special condition N. In prayer 1 of the statement of claim the plaintiff prays in general terms for specific performance as well as asking for specific performance in a particular regard. The relief now sought is, in effect, an order by way of specific performance of the March 1994 contracts. In my view it can be granted under the pleadings as they stand, perhaps with some aid from Part 40 r 1 of the Rules. In any event the defendants' objection to the relief is not on a procedural basis but on a lack of substantive entitlement to it. 3 The most difficult issue that arises on consideration of this matter is whether special condition N in reality ever did and now does entitle the plaintiff to a second mortgage over the land. The land in actual fact held by the defendants has now shrunk to the last large lot, Lot 13, all other lots having been sold either by the parties or by a first mortgagee. Special condition N and the context in which it appears are as follows - and I quote from the special conditions to the March 1994 contracts which are agreed to be in force: "M Disbursement of sales proceeds. The Purchase moneys from the sales of Lots 1- 10 shall be disbursed as follows: