New South Wales Supreme Court CITATION : Parker v Bravo Building [2003] NSWSC 451 HEARING DATE(S) : 8, 9 and 16 May 2003 JUDGMENT DATE : 28 May 2003 JURISDICTION: Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Declarations that vendor bound by obligations. Order to perform so far as possible. CATCHWORDS : CONTRACTS - vendor and purchaser - contract for sale of land with strata unit to be erected - term making contract conditional upon performance of certain work - term providing for fittings and finishes of equivalent quality - additional work not performed - finishes not in accordance with list - whether agreement for variation - whether writing required for variation - whether substitutions satisfied conditions for substitution - EQUITY - specific performance - where consent of outside agency required - form of order CASES CITED : Tallerman & Co Pty Ltd v Nathans Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 PARTIES : Russell Parker (Plaintiff) Bravo Building Pty Ltd (Defendant) FILE NUMBER(S) : SC 4812 of 2002 COUNSEL : Mr A Ogborne (Plaintiff) Mr J Armfield (Defendant) SOLICITORS : Turner Freeman (Plaintiff) Gells (Defendant) - 17 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J WEDNESDAY, 28 MAY 2003 4812/02 RUSSELL PARKER V BRAVO BUILDING PTY LTD JUDGMENT Outline 1 The plaintiff seeks an order for specific performance of a contract for the sale by the defendant company to him of a strata title property. The defendant claims to have terminated the contract after the plaintiff failed to comply with a notice to complete. Facts 2 By contract 1 May 2001 the plaintiff, Mr Parker, agreed to purchase from Bravo Building Pty Ltd (Bravo) a property which could be described as a townhouse and garage which was part of a strata title development to be constructed by Bravo in Kumbardang Avenue, Miranda. 3 The building work had not progressed far, if it had progressed at all, at the date of the contract. The contract itself is a most unsatisfactory document. It is clear that no proper attention could have been given to it. What the parties obviously intended was to enter into a contract for the sale and purchase of a townhouse property to become a lot in the strata plan in a development to be constructed in accordance with a development consent of the Sutherland Shire Council. That consent document is annexed to the contract. There is no term requiring the building to be completed in accordance with the consent and approved plans. There are two clauses as to the vendor's obligations to obtain registration of the strata plan. The special conditions are in no sensible order and appear clearly to be some sort of cut and paste job. The lack of attention given to the contract can be shown by setting out clause 52 which is as follows: 52. BENEFITS TO ENSURE [SIC] The parties hereby acknowledge that the benefit of the obligations warranties covenants and contracts contained in this contract having application after the date of completion shall ensure [sic] notwithstanding the completion of this contract. 4 There are many other ridiculous provisions. Clause 39 provides that requisitions under printed clause 5.1, must be the form of attached requisitions. And if that were not bad enough, no form is attached. There is little to be gained by setting out other examples of poor draftsmanship. It is hardly surprising that this sort of contract results in litigation. 5 The following clauses are included in the contract: 7 Claims by purchaser The purchaser can make a claim (including a claim under clause 6) before completion only by serving it with a statement of the amount claimed, and if the purchaser makes one or more claims before completion - 7.1 the vendor can rescind if in the case of claims that are not claims for delay - 7.1.1. the total amount claimed exceeds 5% of the price; 7.1.2 the vendor serves notice of intention to rescind; and 7.1.3 the purchaser does not serve notice waiving the claims within 14 days after that service; and 7.2 if the vendor does not rescind, the parties must complete and if this contract is completed - 7.2.1 the lesser of the total amount claimed and 10% of the price must be paid out of the price to and held by the depositholder until the claims are finalised or lapse; 7.2.2 the amount held is to be invested in accordance with clause 3.1; 7.2.3 the claims must be finalised by an arbitrator appointed by the parties or, if no appointment is made within 1 month after completion, by an arbitrator appointed by the President of the Law Society at the request of a party; 7.2.3 the purchaser is not entitled, in respect of the claims, to more than the total amount claimed; 7.2.5 any net interest on the amount held must be paid to the parties in the same proportion as the amount held is to be paid; and 7.2.6 if the parties do not appoint an arbitrator and neither party requests the President to appoint an arbitrator within 3 months after completion, the claims lapse. (By Clause 30.1.10 5% is substituted for 1%). … 37. Building Defects 37.1 Within three (3) months after the completion date the Purchaser shall conduct an inspection and be entitled to provide to the Vendor a list of substantial defects due to faulty materials or faulty workmanship which apply to the Property and the Vendor shall rectify such defects as soon as practicable after the vendor has agreed that the items in the list of defects are defects falling with clause 37.1. The rectification may be done after the date of completion. (This last sentence results from an unthought out amendment to the first line). 37.2 The Vendor has the right to reasonably object to any of the items in the list of defects. 37.3 The Vendor, its tradespeople and representative, shall have access to repair and make good any of the items in the list of defects. … 53. COMPLETION (a) Completion of this contract shall take place on the later of: (i) forty-two (42) days from the date of this Agreement; and (ii) twenty-one (21) days after the date on which the Vendor serves written notice on the Purchaser or the Purchaser's solicitor that the Strata Plan is registered at the Land Titles Office. (b) This contract must be completed by 2.00 pm on the completion date. (c) If completion does not take place by the time and date set out in paragraph (a) and (b) of this clause then either party may serve on the other party at any time after that time and date a notice stipulating a date for completion being not less than 14 days after the date of service of the notice and stipulating that time is of the essence in respect of the time and date specified in the notice. … 65. FINISHES 65.1 The Purchaser acknowledges that the Purchaser must accept the finishes as applicable to the Property and identified in the Schedule of Finishes and may not request the Vendor to vary the finishes to any alternative scheme. 65.2 The Vendor shall cause the items specified in the Schedule of Finishes to be installed in a proper and workmanlike manner in the Property and the Common Property. 66. ALTERATIONS TO FINISHES 66.1 The Vendor reserves the right to: 66.1.1 alter any finish specified in the Schedule of Finishes to another finish of equivalent or higher quality; and 66.1.2 alter any item specified in the Schedule of Finishes to another item of equivalent or higher quality. 66.2 The Purchaser cannot make a claim or objection or requisition or rescind or terminate in respect of any alteration referred to in clause 66. … 70. The Vendor acknowledges that both the Purchaser and the Builder have agreed to carry out the following works (Works) at the cost of the Purchaser: 1. Supply and install skylights to en suite and above stairwell at the cost of $2,000.00 to the Purchaser; 2. Supply and install additional TV outlets to bedrooms two and three at the cost of $130.00 to the Purchaser; 3. Supply and install additional double power outlets to bedrooms two and three at the cost of $90.00 to the Purchaser; 4. Supply and install an additional telephone outlet to the master bedroom at no cost to the Purchaser. 5. Supply and install a laundry door to the courtyard in lieu of a window at the cost of $80.00 to the purchaser; 6. Supply and install an external door from the garage to the courtyard at the cost of $175.00 to the purchaser; 7. Supply and install a gas log fire in the lounge room as per drawing supplied by Mr Afroz Ali. There is to be a 200mm wide hearth supplied and fixed by the builder with tiles to match the entry floor tiles. The fire box, insert and glue are to be supplied by the purchaser at the cost of $1,500.00 to the purchaser. The Vendor agrees that the completion of this Contract is conditional upon the works completed by the Builder unless the carrying out of the Works has not been completed prior to the Completion Date due to any breaches by the Purchaser of this agreement with the Builder. 6 The Schedule of Finishes is somewhat strange. In one part it sets out "PC items" with a description of items and prime cost sums. Quite what is intended by the price indicators is not apparent. Under the heading "kitchen" and above some typewritten material is written "kitchen to be completed in accordance with the enclosed selection sheet provided by Nobby Kitchens". The selection sheet provides for a Bordeaux style kitchen, colour: white woodgrain; benchtop colour: Paradiso; kickplate: white; benchtop edge: chamfered edge. There is then a note: "If granite not acceptable, Laminex gloss Canyon Black Wilsonart 1755-1". 7 Under item B "Internal, Floors & Walls", all typed words are deleted and the following substituted tiling to be completed in accordance with the enclosed quotation of "Tiles & More". C'Bon Carpet 469 Mandarin Cut Pile installed throughout the property wall to wall. A quite detailed quotation from Tiles & More is attached to the contract. 8 The vendor's solicitor gave notice of registration of the strata plan on 2 July 2002. At that time and up to the present time certain works required by Clause 70 to be completed as a condition of contract completion had not been carried out. They have not yet been carried out. Those works are the installation of a skylight in the en suite bathroom, the installation of a laundry door to the courtyard and a door from the garage to the courtyard. In addition the kitchen installed was not a Nobby's Bordeaux kitchen. The tiling was not that as specified in the Tiles & More quotation and the door handles were not of the lever type also specified in that quotation. 9 On 5 August 2002, the plaintiff provided to the defendant a list of defects. On 5 September 2002, the defendant served a notice requiring completion by 2.00 pm on 25 September 2002. That did not take place and probably later that day the defendant served a notice purporting to terminate the contract. 10 By two notices in February 2003, much to the same effect, the second one being served because there was some doubt expressed as to service of the first, Bravo claimed that the plaintiff had made a claim for compensation exceeding 1% of the purchase price and stating that it would rescind unless the notice was withdrawn. The plaintiff responded that the notice of defects did not fall within clause 7 of the contract, but if it did then it would reduce its claim to 1% of the price and withdraw any claim over and above that amount. Issues 11 The question is whether the vendor has validly terminated the contract and if not whether an order for specific performance of the contract or like order should be made. 12 The purchaser says that the notice was not a valid notice because: (1) the vendor had not carried out the work required by clause 70; (2) the vendor has not installed the items required by clause 65. In response to this the vendor relies upon clause 66 of the contract and its rights to alter the finishes. This appears to be claimed in respect of the clause 70 obligations as well as the finishes. In addition the vendor says that so far as clause 70 is concerned there was an agreement to vary the contract by deleting the requirement for the en suite skylight and the doors from the laundry and garage to the courtyard and in respect of the skylight substituting a skylight in the kitchen. An agreement for variation is also said to have been made for the tiles and the doorknobs. 13 By cross-claim the defendant seeks a declaration that it has validly terminated the contract and in the alternative a declaration that if it has not done so the plaintiff has made a claim for compensation within clause 7 of the contract and that this has either been waived or is reduced to 1% of the purchase price. Was there an agreement for variation? 14 The plaintiff was a regular visitor to the property during construction. It was of significance to him as it was to be his retirement home. 15 Mr Anthony Lazzaro, who is a director of the defendant at the present time, and who, with a Mr Joe Leto, appear to have been the directors in charge of the project, gave evidence to the effect that he had a meeting in September or October 2001 with the plaintiff which was attended by the plaintiff, Mr Doug Anderson, who is a cousin of the plaintiff and who had assisted him with the purchase details, Mr Robert Casaceli, who was the real estate agent for the vendors on the sale, a Mrs Barbuto, a friend of Mr Anderson, and his father Mr Frank Lazzaro and Mr Leto. He said that they first went into the kitchen when it was arranged that the window would be eliminated to make room for the kitchen which the plaintiff required. He said there was discussion about light into the kitchen. Mr Lazzaro gave evidence that he had said that a skylight could probably be put in the ceiling and that: "on the subject of skylights we will leave the skylight in the hallway as proposed and eliminate the skylight in the en suite as there is no sense in having the skylight there as there is sufficient light there. You do not really need a skylight in the en suite because there is a window there already". He said that he then went upstairs with the plaintiff, who agreed that a skylight was not required in the en suite. Mr Lazzaro said that they next went into the laundry and Mr Anderson questioned the lack of the laundry door leading to the courtyard. Mr Lazzaro gave evidence that he said that in view of the size of the laundry and the washer and the dryer and the sink there would be no room for a door. He said that Mr Anderson raised the question of demolishing the wall between the laundry and the toilet which would give room for the door and that he, Mr Lazzaro, said that this was not possible due to a structural beam, to which Mr Parker made no response. His evidence that the party then went into the garage where Mr Anderson questioned the lack of a door from the garage into the courtyard. He said that he had explained that the wall had to be moved to avoid being built on top of a Water Board manhole, so that it was not possible to put the door where it had been proposed. According to Mr Lazzaro Mr Anderson had said that he was not happy and there was no further conversation. 16 So far as the tiles were concerned, Mr Lazzaro said that about one month later the plaintiff and one of his sons had come to the site with a case of beer for the workers, and that he had taken the plaintiff into the garage of unit no 4 and had shown him some tiles which were to be used. He said that the plaintiff had accepted these by saying after inspecting them "Yes, that is not a problem, I like it. I cannot wait to move in." He said that the tiles which had been shown to the plaintiff were fitted to unit 5 apart from the kitchen floor tiles. He said that he then went to a container to get a specimen door handle and met the plaintiff and his son outside unit 5 where he had shown him the door handle. There was discussion about the carpet. There was discussion about tiles on the kitchen floor. He said that there was discussion about getting tiles to match the carpet and the plaintiff had said "Ok, I will leave it up to you." He said that he had shown the plaintiff and his son some chrome door handles which he had said could be used instead of the door handles selected. He said that the plaintiff had agreed to this saying, "Ok, fantastic thanks for that." 17 Mr Lazzaro said that about a month after the second meeting the plaintiff had gone into the laundry and said that the tiles were not the tiles quoted, to which he had responded that they were the ones agreed to on the previous occasion. There was the same discussion about the kitchen tiles, Mr Lazzaro saying that they were better quality and had been made in Italy. There was some discussion about the bathroom tiles which I do not think to be significant. 18 Mr Frank Lazzaro gave some evidence which was somewhat different from that of his son, but he did say that the staircase was in place at the time of the first inspection. He said he did not go into the laundry or the garage. 19 So far as these alleged conversations are concerned the plaintiff and all his witnesses denied that any agreement for alteration had been made. Mr Anderson, who had assisted Mr Parker through all the negotiations with the present defendant and the previous owner, denied there was ever any conversation about deleting the skylight from the en suite bathroom. He said that this had been an important requirement in negotiations with the original developer and had remained so. He said that there was no stairway access to the first floor at the time of the inspection in question. Mrs Barbuto gave the same evidence as to lack of a staircase, although it is fair to say that she was not available for cross-examination. The plaintiff denied there was a staircase and denied any conversation about deleting the skylight. 20 According to Mr Anderson, whose evidence I accept, the conversation about the door from the laundry to the courtyard ended with either Mr Leto or Mr Frank Lazzaro saying, "Look, if that's what you want we will have to organize council approval." So far as the door from the garage is concerned he said that the plaintiff was not present during the beginning of the conversation. It seems that he accepted that it would not be possible to put the door into the courtyard area but it would have been possible to put in an external door giving access to the common property. The evidence of Mrs Barbuto as to the access doors was similar to that of Mr Anderson. The evidence of Mr Parker was to much the same effect. Two of the persons who were present at these meetings and could have been expected to have been called by the defendant were not called. The persons were Mr Joe Leto and the agent, Mr Casaceli. There was some explanation given for the failure to call Mr Leto, in that he and Mr Anthony Lazzaro have fallen out and he is no longer a director of the defendant company. There is, however, no reason to think that he would give false evidence just because of this falling out and as some of the conversations were attributed to him the fact that he was not called does, I think, give rise to a reasonable inference that his evidence would not assist the defendant. It is also significant that the agent for the vendor was not called, he being present throughout the vital inspection. The same inference can be drawn. In any event I find that there was no staircase access from the ground floor to the first floor at the time of the first inspection. On that basis it is not possible to accept there was agreement for deletion of the en suite skylight. I do not accept the evidence of Mr Lazzaro and his father as to this. I accept the evidence of the plaintiff and his witnesses that there was insistence on the requirement of the doors from the laundry and the garage and there was discussion about the necessity to obtain council approval for this. Whatever the position, even as put by the defendants' evidence of the conversations, apart from the skylight, those words would not amount to agreement to vary the terms of clause 70 of the contract. I should add that, apart from the exchange of skylights, there was no consideration for the claimed agreement to delete the doors. It could, however, be thought that deletion of the PC cost would be the consideration, although the solicitor for Bravo, perhaps in error, claimed in correspondence it was payable in any event. 21 So far as the tiles and door handles are concerned I do not accept the evidence of Mr Anthony Lazzaro as to any agreement with Mr Parker. The evidence of Mr Parker's son as to what happened on the second occasion, which I accept, is against any such agreement having been made. Both he and his father said there was no discussion in Unit 4. It is clear that the plaintiff went to considerable trouble to select his tiles and door handles, the door handles being selected to overcome or help overcome a particular problem that he has with his hands. Lever type handles were far more convenient for him than knob type handles. I accept the plaintiff's evidence that the defendant was warned, through the agent, that the tiles were not correct. Bravo made no contact with Tiles & More. It is not suggested there was any agreement to change the type of kitchen. A further reason to reject the claim of variation is that in correspondence about contract requirements over more than three months the defendant's solicitors gave many reasons for non-compliance, but restricted any claim about variation to the skylight variation. What appears to have happened is that the builder was determined to go ahead regardless. However, whether it could or not depends upon the terms of the contract. If an oral agreement for variation were made is it enforceable? 22 The answer to this question depends upon whether or not the contract in question consists of two parts, one of which is not referable to an interest in land and is severable from the contract relating to an interest in land with a separate consideration attached to it. Counsel for Bravo relied on the passage from Stonham: Vendor and Purchaser p35 para 46. 46. If the contract relates to matters partly within and partly outside the provisions of the Statute, and the consideration for the promise is an entire one, the contract is unenforceable unless the Statute is complied with. But, where the consideration and promise relating to the part of the contract, which is within the section, can be severed from the consideration and promise relating to that part not within the section, so that the promises are severable, and really two separate contracts, one within the section and one outside the section, the latter can be enforced, though not evidenced in writing. 23 The cases cited by the learned author in support of that passage - none of which was referred to by counsel - for the most part relate to collateral agreements separately enforceable very different from the contract here under consideration. In this case there is certainly a separate consideration for the skylight and for the doors provided for in clause 70 under its rather extraordinary wording. On the other hand provision of those items is a condition of completion of the contract and the contract was for the sale and purchase of the land and the particular townhouse building to be erected upon it to become part of the land. The purchaser was entitled to have what he contracted to buy. In those circumstances I have come to the conclusion that clause 70 is not severable as argued by the defendant. In those circumstances writing is required: Tallerman & Co Pty Ltd v Nathans Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 at 113. I would reach the same conclusion for the tiling. It is not claimed there was a variation agreement about the kitchen. Kitchen tiles and door handles – changes to finishes 24 So far as the kitchen is concerned it is not suggested that there was ever any discussion about the change. Bravo just put in the kitchen which it decided to put in without consultation. So far as the tiles and the door handles are concerned I have rejected the question of any agreement. 25 The question then is whether or not clause 66.1 of the contract can be relied upon by the vendor so far as the change of finishes is concerned. 26 So far as the kitchen is concerned it is not a Nobby's kitchen and it is not a Nobby's Bordeaux kitchen. It has different colouring, different items, the bench top is not granite, the edges are not chamfered edge. The bench top is not the alternative of Laminex gloss Canyon Black Wilsonart 1755-1. There is no breakfast bar as there is with a Nobby's kitchen. The evidence of Mr Parks, who gave evidence for the defendant included the following: In my opinion the kitchen installed in the premises is a good quality kitchen, satisfactorily installed. The kitchen installed is of equivalent quality to a Nobby Kitchen, Bordeaux kitchen taking into account: the limited information in the selection sheet; the room space available (including the rear window); the selection of material for the overhead cupboards, under bench cupboard, bench top and fridge enclosure; and the standard of workmanship. The difference between the kitchen installed and a Nobby Kitchen Bordeaux kitchen is a [sic] aesthetic difference. In my experience Nobby Kitchens supplies kitchens in the low-middle economic range. 27 As was elicited from Mr Parks in cross-examination, this opinion was given on the basis of the selection sheet and not on the basis of what was included in a Bordeaux kitchen. He accepted that a kitchen with a breakfast bar would be one of a higher quality than one without a breakfast bar. His evidence does not really compare the elements and finishes in a Nobby's kitchen with those which were used. What has been done is to compare what is there with the selection sheet and to relate this to the opinion of Mr Parks that what has been installed is a good quality kitchen. I do not consider that this fulfils the requirements of clause 66.1. So far as the tiles are concerned, the evidence of Mr Parks is more limited. In essence he says that good quality floor and wall tiles have been installed to a satisfactory standard of workmanship. This in no way compares them with those specified in the Tiles & More quotation. The contract in clause 65.2 required the vendor to cause the specified items in the Schedule of Finishes to be installed in a proper and workmanlike manner in the property. It has not done so. As it was not entitled to the benefit of clause 66.1, it has not performed its obligations under the contract. Was the vendor entitled to give a notice to complete? 28 It follows from my conclusions as to the breach of clause 70 and the breach of clause 65.2 that the vendor was not entitled to give a notice to complete as it had not fulfilled its obligations under the contract at the time the notice was given, nor at the time when it purported to terminate. The failures were matters of substance. It follows from this that as the purchaser has established that he is ready, willing and able to fulfil his obligations under the contract he is entitled to an order in the nature of specific performance. 29 In dealing with finishes I have not dealt with the question of shower roses in the bathrooms, nor the Porto door handles, both of which were specified in the Tiles & More quotation. There is no evidence that would support the view that alternative items, fulfilling the requirements of clause 66.1 have been furnished. Therefore, in the same way, breach of contract by the vendor applies. I should add that after the notice to complete was given, but not before objections were made, the solicitor for the plaintiff, by letters of 8 November, 15 November 2001 and 27 January 2002 made complaints in respect of the kitchen, the tiling and the skylight and apparently about the lack of the laundry door. The first response to this was that all items were covered by clause 66 of the contract and at a later stage there was a response that the council would not approve the laundry door. The evidence was that it had not been asked to. There was later a suggestion by the vendor's solicitors that alterations in accordance with a list were made at the request of the purchaser and that a further $40,326 was payable for those alterations. There was no possible basis for that assertion. The correspondence continues up to July and August 2002. One letter included a demand for the additional amounts provided for by clause 70, even though the external doors had not been fitted. Claim about defects 30 On 5 August 2002, the solicitor for the purchaser sent to the solicitor for the vendor the list of defects and "items of non-compliance with the contract". After these proceedings had been commenced, and an affidavit of Mr John French filed, the solicitors for the vendor claimed that the claim for damages concerning the property had been quantified by that affidavit that the amount claimed was $40,763.60, not including the kitchen, and that as that exceeded 1% of the contract purchase price notice was given that the vendor would rescind the contract unless the claim was withdrawn. There was a response to this by the plaintiff's solicitors stating that it was not a claim under the contract, but that if it was, the claim was withdrawn insofar as it exceeded 1%. There was another contention by the plaintiff's solicitors that as the vendor had purported to elect to exercise a right to terminate the contract, it could not thereafter rescind it. It does not seem to me to be necessary to discuss that matter. The claim as to defects was never a claim for compensation. The fact that Mr French set out various figures for costs of rectification does not turn it into a clause 7 claim. Most of the items were items which in the normal case would have been within clause 37 of the contract. Clause 37.1 was amended so that the list of defects was to be provided after the completion date. It is possible that some doubt arose because "completion date" is defined in the contract in the events which happened as being 21 days after the date on which the vendor served notice of registration of the strata plan. It would be an extraordinary construction of clause 37 if it meant that if, at the date of registration of the strata plan, a lot of the work required by the contract had not been completed by the vendor, then nevertheless the list of defects had to be given by that date. It seems to me that the only sensible way in which the contract could be interpreted is that for the purposes of clause 37 completion date means, in the case when it is the vendor's fault that completion has not taken place, the actual date of completion. In any event that does not matter because no claim has been made within the meaning of clause 7. 31 It may be that if it does turn out that the vendor is unable to provide what it contracted to provide, because it cannot get the necessary approvals for the external doors, then there could be some claim for compensation. That is not a matter which needs to be considered at the present time. In the same way if it is not possible to provide for a door from the garage to the courtyard as a result of changes requires in construction to access a water mains manhole, that can be determined on further consideration. The vendor would not be required to substitute access if it became impossible to fulfil a particular term. Proposed orders 32 I will hear argument on the form of orders but set out proposed orders for consideration: 1. Declare that the defendant is in breach of its obligations under the contract so far as its provision for a kitchen, tiling and handles are concerned. 2. Order the defendant to perform such obligations. 3. Declare that the defendant is in breach of the requirement under clause 70(1) as to an ensuite skylight and 70(5) and 70(6) of the contract and is bound by its obligations so far as clause 70(1) is concerned and is bound to take all steps necessary to obtain approvals to enable it to comply with its obligations under clause 70(5) and (6) and subject to obtaining such approvals is bound by its obligations under the said provisions of the contract. 4. Order the defendant to perform the said obligations. 5. Order the cross-claim be dismissed. 6. Order the defendant to pay the plaintiff's costs of the proceedings up to the date of these declarations and orders. 7. 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