BOYER v KOSCIUSKO-THREDBO PTY LIMITED [2002] NSWSC 653

New South Wales Supreme Court

CITATION : BOYER v KOSCIUSKO-THREDBO PTY LIMITED [2002] NSWSC 653 revised - 6/08/2002 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 6007/01 HEARING DATE(S) : 27/05/02 to 29/05/02 & 31/05/02 JUDGMENT DATE : 30 July 2002

PARTIES : John Peter BOYER & Anor v KOSCIUSKO-THREDBO PTY LIMITED JUDGMENT OF : Foster AJ at 1-115

P.M. Wood - Plaintiffs COUNSEL : J.M. Ireland QC - Defendant Landerer & Co - Plaintiffs SOLICITORS : Lane & Lane - Defendant CATCHWORDS : The defendant (a trading corporation) selling land at Crackenback Ridge, Thredbo to plaintiffs - dispute over size of certain blocks - Breach of covenant. LEGISLATION CITED : Trade Practices Act 1974 (C'wlth) Environmental Planning & Assessment Act 1979 DECISION : Short Minutes of Order to be brought in by the parties. ; (Refer para 114)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: FOSTER AJ

TUESDAY, 30 JULY, 2002 6007/01 - John Peter BOYER & Anor v KOSCIUSKO-THREDBO PTY LIMITED JUDGMENT 1 FOSTER AJ: The defendant in these proceedings is and was at all material times a trading corporation within the meaning of the Trade Practices Act 1974 (C'wlth) ("The Act") and is and was a lessee from the State of New South Wales of land in an around the village of Thredbo in the Kosciusko National Park. The land with which these proceedings is concerned is in the area known as Crackenback Ridge. It is an area in which the sport of skiing is conducted and ski lodges and other facilities associated with that sport are constructed. 2 In the course of its business the defendant sells to purchasers portions of the land, the subject of its lease. It does so by entering into a contract described as an Agreement for Development ("Agreement") and Sub-lease with those purchasers. In brief, a purchaser acquires from the defendant an area of land, described in the Sub-lease and given a lot number. The Development Agreement provides for the erection on the land, to be so acquired, of ski lodge buildings. Consent to the sub-lease and proposed development is required from the National Parks and Wildlife Service (NPWS) which is the determining Authority under Part 5 of the Environment Planning & Assessment Act 1979 ("The EPA Act"). In fact, the necessary consent is applied for by the defendant, not by the purchaser. Also, in practice, the Sub-lease is formally entered into after the development has taken place in accordance with the Agreement. 3 The defendant operates a sales office in the Thredbo area, to which intending purchasers may resort and where they can obtain information as to available lots for sale, be shown the actual sites and conduct negotiations for purchases. As part of its selling procedures, the defendant supplies brochures, plans and other promotional material to potential purchasers. 4 The office, at the time relevant to these proceedings, was staffed, inter alia, by Messrs. Huggett and Halsted, employees of the defendant. Mr Huggett was the property and development manager and Mr Halsted was a property manager of the defendant, in relation to its operations in the Thredbo Village area. 5 The plaintiffs, John Peter Boyer ("Mr Boyer") and Graham Humphries ("Mr Humphries") became the purchasers of a block of land from the defendant in the Crackenback Ridge area, the relevant Development Agreement being finalised in January 2001. The Sub-lease has not yet been finalised, its completion having been overtaken by this litigation. The land was described as Lot 270 in the Crackenback Ridge area. More detailed reference will be made to its location later in these reasons. For present purposes it may be indicated that it was bounded to the east by other residential lots, to the south by a golf course area and to the north and west by an area described as Pt 258. This latter area was a flora and fauna reserve to which I shall make more detailed reference later. The southernmost portion of Pt 258 consisted of a corridor of land which led to the golf course area and which separated the western boundary of Lot 270 from the eastern boundary of the closest lot to the west of Lot 270. This lot was Lot 229, to which further reference will be made. 6 In the course of negotiating the Agreement, the plaintiffs sought and obtained a covenant in respect of Pt 258 and the golf course. It appears that the defendant had never, previously, provided such a covenant. In its final form, in the Agreement of 3 January 2001, it provided as follows:- "3.7 Future Development The Company covenants and agrees that it shall not permit or suffer developments to be carried out in the area designated "Pt 258" and the area designated "Golf Course" on the Southern Boundary of Lot 270". 7 In these proceedings the plaintiffs assert that the defendant has committed a breach of this covenant, in that it is seeking to allow development on Part 258 to the detriment of the plaintiffs. The proceedings were commenced by summons. Interlocutory relief was granted, after which, by consent, pleadings were ordered. These pleadings raise a number of issues which I shall consider later. It is convenient now to set out the background to the proceedings and, in the process, make some findings of fact. 8 Background