The Urban Partnership Pty Ltd v Landco Holdings Pty Ltd [2003] NSWSC 492

New South Wales Supreme Court

CITATION : The Urban Partnership Pty Ltd v Landco Holdings Pty Ltd [2003] NSWSC 492 HEARING DATE(S) : 01/05/03; 07/05/03 JUDGMENT DATE : 12 June 2003

JURISDICTION: Equity Division Commercial List JUDGMENT OF : Nicholas J DECISION : Plaintiff entitled to declaration and orders sought in the Second Further Amended Summons

CATCHWORDS : CONTRACT - Interpretation - Whether upon the proper construction of agreement Plaintiff entitled to payment of fee upon sale of development site - Whether there was an alternative agreement under which the Plaintiff was entitled to payment of such fee - HELD Plaintiff entitled to declaration and orders sought in Second Further Amended Summons Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 CASES CITED : Investors Compensation Scheme [1998] 1 WLR 896 Masters v Cameron (1954) 91 CLR 353 Maggbury Pty Ltd v Hafele Australia Pty Limited (2001) 76 ALJR 246 Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289 PARTIES : The Urban Partnership Pty Ltd - Plaintiff Landco Holdings Pty Ltd - Defendant FILE NUMBER(S) : SC 50091/02 COUNSEL : P W Taylor SC/A M Colefax - Plaintiff P H Greenwood SC/S A Goodman - Defendant SOLICITORS : Luscombe Wright Lawyers - Plaintiff Clayton Utz - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

NICHOLAS J

12 June 2003

50091/02 The Urban Partnership Pty Ltd v Landco Holdings Pty Ltd JUDGMENT The Proceedings 1 HIS HONOUR: These proceedings concern a dispute between The Urban Partnership Pty Ltd (TUP) which is a property development consultant and Landco Holdings Pty Ltd (Landco) which is a real estate property developer. By its Second Further Amended Summons TUP claims an entitlement to outstanding fees said to be owing in relation to consultancy services provided in relation to a development project over land at Arncliffe in New South Wales variously known as "the Qantas Project", "the Interciti Development Project" or "the Interciti Project", (the Qantas project). 2 The claim for fees is put on alternative bases. Firstly, TUP relies upon the agreement made between the parties on or about 10 September 1999 evidenced by the exchange of letters of 3 September 1999 from Landco to TUP, and of 10 September 1999 from TUP to Landco (the September agreement). Alternatively, TUP relies upon an agreement which it claims was made between the parties in January 2001. Alternatively as evidenced by the letter from TUP to Landco of 8 January 2001, the letter from Landco to TUP of 22 January 2001, words spoken at meetings between representatives of the parties on 7 June 2001, and a letter from TUP to Landco of 8 June 2001 (the June agreement). 3 It is appropriate to consider first the claim based upon the proper construction of the September Agreement. 4 The letter of 3 September 1999 is in the following terms: "Following our recent meeting with the Board and your subsequent discussions with Andy, we are pleased to confirm formally the commercial arrangements between Landco and TUP, and the ongoing arrangement as our NSW Business Development Managers. The Commercial Arrangements agreed upon between both parties is [sic] based on the following: TERM: Two year commitment with an option to extend the arrangement for a further three years. MONTHLY FEES: base fee of $20,000 [sic] month plus a project service fee $2,500 for each active project undertaken. Out of pocket expenses and contribution to the Sydney Office expenses will continue as is currently the case. PROJECT PROFIT SHARING: The board has set the overall hurdle rate on all projects at 22% of turnover. TUP will share 35% of all project profits above the hurdle rate set. QANTAS PROJECT: In the event of a sale of this project prior to development, TUP will be entitled to a sliding scale fee for success, increasing from 10% at $11 Million to 25% at $14 Million. The sliding fee will be paid on the incremental net value achieved on the sale of the project. If the project is rezoned and developed by Landco through a joint venture mechanism then TUP will be entitled to a minimum project fee of $1 million or profit sharing based on the above principles, whichever is higher. SPRING HILL - EXTENTION (sic) LAND: Once re-zoning approvals have been achieved on the land, TUP will be entitled to a project fee of $240,000.