Ardee Pty Ltd v. Collex Pty Ltd [2001] NSWSC 836

New South Wales Supreme Court

CITATION : Ardee Pty Ltd v. Collex Pty Ltd [2001] NSWSC 836 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1675/00 HEARING DATE(S) : 9 to 11 July, 2001 JUDGMENT DATE : 28 September 2001

PARTIES : Ardee Holdings Pty Ltd [Plaintiff] Collex Pty Ltd [Defendant] JUDGMENT OF : Palmer J

COUNSEL : R.C. McDougall QC, John E. Robson [Plaintiff] R.T. McKeand [Defendant] SOLICITORS : Hallett & Associates [Plaintiff] Holman Webb [Defendant] CATCHWORDS : CONTRACTS - FRUSTRATION - SUPERVENING ILLEGALITY - Put and Call Option Deed entitling Defendant to call for contract for sale of land to itself or to nominee and entitling Plaintiff to require Defendant to enter into contract - Deed subject to condition that approval to Defendant's acquisition of land be obtained under Foreign Acquisitions & Takeovers Act, 1975 (Cth) upon conditions acceptable to it - Treasurer approves acquisition upon condition that options not exercised unless Defendant proceeds with development of waste management centre on different land - condition acceptable to Defendant - development consent to waste management centre later refused - Defendant cannot acquire land without committing breach of Foreign Acquisitions & Takeovers Act - Plaintiff exercises Put Option and seeks specific performance - whether Deed frustrated. CONTRACT - FRUSTRATION - DISCHARGE - Whether Option Deed wholly discharged or partially discharged - Defendant cannot acquire interest in land for itself without breach of Foreign Acquisitions & Takeovers Act but can exercise Call Option in favour of nominee third party without breach of Act - other benefits retained by Defendant - whether frustrated part of the Deed severable - whether performance of non-frustrated part of Deed would make as much commercial sense as performance of whole Deed - frustrated part of Deed held severable - Defendant discharged from performance pro tanto. FRUSTRATED CONTRACTS ACT - Payments by Defendant in consideration for grant of Call Option - partial frustration of Deed - Call Option cannot be exercised for benefit of Defendant but can be exercised for benefit of nominee - Defendant seeks order for repayment of option consideration under Frustrated Contracts Act - benefit lost to Defendant by partial frustration not a benefit which it really wanted or needed - other benefits retained by Defendant - prejudice to Plaintiff - adjustment of rights of parties not appropriate under s.12 Frustrated Contracts Act - discretionary considerations under s.15(1) - relief under Frustrated Contracts Act refused. Environmental Planning & Assessment Act 1979 - s.91, s.97 LEGISLATION CITED : Foreign Acquisitions and Take-overs Act 1975 (Cth) - s.5(1), s.12A, s.21A, s.25, s.26A Frustrated Contracts Act 1978 (NSW) - s.6, s.12, s.15. - Bank Line Ltd v Arthur Capel & Co [1919] AC 435 - Beaton v McDivitt (1987) 13 NSWLR 162 - BP Exploration (Libya) Co Ltd v Hunt (No 2) [1979] 1 WLR 783; [1983] 2 AC 352 - Codelfa Construction Pty Ltd v. State Rail Authority of NSW (1982) 149 CLR 337 - Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 - Denny Mott & Dickson Ltd v James B. Fraser & Co Ltd [1944] AC 265 CASES CITED : - The Eugenia [1964] 2 QB 226 - Hirgi Mulji v Cheong Yue SS Co [1926] AC 497 - Khoury v GIO (NSW) (1984) 58 ALJR 502 - Penrith District Rugby League Football Club Ltd v Fittler (unrep. SCNSW, 8 February 1996) - Sargent v. ASL Developments Ltd (1974) 131 CLR 634 - Secured Income Real Estate (Australia) Ltd v St Martin's Investments Pty Ltd (1979) 144 CLR 596 - Treitel "Frustration & Force Majeure" (1994) DECISION : Plaintiff's claim for specfic performance or damages refused; Defendant's claim for relief under Frustrated Contracts Act refused.