Penrith City Council v Robose Pty Ltd [2002] NSWSC 599

New South Wales Supreme Court

CITATION : Penrith City Council v Robose Pty Ltd [2002] NSWSC 599 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2393/02 HEARING DATE(S) : 26 and 27 June, 2002 JUDGMENT DATE : 27 June 2002

PARTIES : Penrith City Council - Plaintiff Robose Pty Ltd - Defendant JUDGMENT OF : Palmer J

COUNSEL : J.B. Simpkins SC - Plaintiff R.G. Forster SC - Defendant SOLICITORS : Gadens Lawyers - Plaintiff Bowen & Gerathy - Defendant CATCHWORDS : CONTRACT - SALE OF LAND - INFORMAL CONTRACT - Council calls for tenders for purchase of land for development - tender states no binding contract until formal exchange - defendant developer is successful tenderer - defendant does not exchange contracts but proceeds with development application - whether parties evinced common intention that a binding contract would come into existence notwithstanding no formal exchange - ESTOPPEL - Whether developer had actual belief that binding contract existed. HELD: Conduct of parties did not evince intention to depart from the normal expectation of parties engaged in the purchase and sale of land that there would be no binding contract unless and until formal exchange of counterparts - developer did not actually believe that a binding contract existed prior to formal exchange. CASES CITED : Masters v Cameron (1954) 91 CLR 353 DECISION : Declaration that no binding contract existed.

1 By a Summons filed on 23 April 2002, the Plaintiff seeks a declaration that no binding agreement for sale has come into existence between itself as vendor and the Defendant as purchaser of land situated at 62 Great Western Highway Kingswood (to which I will refer as "the Property"). Alternatively, the Summons seeks a declaration that if the Court does find that such an agreement for sale did come into existence, there should be a declaration that the agreement was terminated validly by the Plaintiff on or about 27 November 2001. At the heart of this controversy is the issue whether any contract for sale of the Property has ever come into existence. 2 The facts may be fairly briefly stated. On 1 November 1999 the Plaintiff called for tenders for the purchase of the Property. The tenders were to close on 10 December 1999. The Council issued to those interested a document containing the terms of the tender. Clauses 7, 13 and 17 of the tender are in the following terms: "7. The offer may be accepted by the Vendor delivering notice of acceptance of the Tender to the Tenderer at the address shown on the Tender Form or to the fax number also shown on the form. Service shall be deemed to be effected when acknowledgement by the Tenderer's fax machine is received or one (1) business day after being sent by prepaid post or delivery service. The Tenderer shall have ten (10) days to deliver a duly executed Contract to the Council along with the ten percent (10%) deposit required by the Contract and the Council shall have seven (7) days to return its duly executed counterpart.