Lend Lease Real Estate Investments Ltd & Anor v GPT RE Ltd [2006] NSWCA 207

New South Wales Court of Appeal

CITATION: Lend Lease Real Estate Investments Ltd & Anor v GPT RE Ltd [2006] NSWCA 207

HEARING DATE(S): 1 June 2006

JUDGMENT DATE: 27 July 2006

JUDGMENT OF: Spigelman CJ at 1; McColl JA at 49; Basten JA at 50

DECISION: Appeal dismissed with costs

CATCHWORDS: CONTRACTS – Construction and Interpretation – "deal with" – application of copulatio verborum principle – whether "deal with" confined to alienation.

Chan v Cresdon (1989) 168 CLR 242 CASES CITED: Evans v Stevens (1791) 4 TR 224; 100 ER 986 Jonmenjoy Coondoo v Watson (1884) 9 App Cas 561 Letang v Cooper (1965) 1 QB 232

PARTIES: Lend Lease Real Estate Investments Ltd & Anor (Appellant) GPT RE Ltd (Respondent)

FILE NUMBER(S): CA 40834/05

COUNSEL: T. Bathurst QC, K. Morgan & J. Emmett (Appellant) M. Pembroke SC, T. Saunders (Respondent)

SOLICITORS: Kate Mills – Mallesons Stephen Jaques Ross Drinnan – Allens Arthur Robinson

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 4636 of 2005

LOWER COURT JUDICIAL OFFICER: White J

LOWER COURT DATE OF DECISION: 27 September 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 964

- 16 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40834/05

SPIGELMAN CJ McCOLL JA BASTEN JA

Thursday 27 July 2006 LEND LEASE REAL ESTATE INVESTMENTS LTD & ANOR v GPT RE LTD Judgment 1 SPIGELMAN CJ: These proceedings concern the interpretation of a Joint Ownership Agreement ("the Ownership Agreement") dated 25 June 1992 regulating the ownership of the Sunshine Plaza Shopping Centre in Queensland. The Appellants ("Lend Lease") and the First Respondent ("GPT") are successors in title to the original parties to the Ownership Agreement. The First Appellant and the First Respondent are each 50 per cent owners of the Shopping Centre. This dispute arose from the entry by the First and Second Respondents into a Put and Call Option Deed ("the Option") with respect to the purchase of a 25 per cent interest in the Shopping Centre being half of the First Respondent's existing interest 2 The Ownership Agreement contains pre-emptive rights provisions. Justice White held that circumstances that were alleged by the First Appellant to have given rise to a right to exercise its pre-emptive rights had not arisen. 3 Mr T Bathurst QC, who appeared for Lend Lease, identified three issues arising in the appeal: (i) Did the entry into the Option constitute a dealing with its interests contrary to cl 9(a) of the Ownership Agreement?